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OF  CALIFORNIA 

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LIBRARY 


SOURCES 


CONSTITUTION   OF   THE   UNITED   STATES 


.m^ 


SOURCES 


CONSTITUTION   OF  THE  UNITED 
STATES 


CONSIDERED   IN   RELATION   TO   COLONIAL 
AND   ENGLISH    HISTORY 


BY 
C.   ELLIS   STEVENS,   LL.D..  D.C.L. 

F.S.A.    (EDINBURGH) 


MACMILLAN    AND    CO. 

AND     LONDON 
1S94 

AU  rtWi/s  rfserz'ed 


'  ■  \  c 


Copyright,  1894, 
By   C.   ELLIS   STEVENS. 


Xortoooli  Press: 

J.  S.  Cushiiig  &  Co.  —  Berwick  &  Smith. 
Boston,  Mass.,  U.S.A. 


i' 


hx  eriiute 

TO   THE 

--  NATIONS   WHICH   IN   VARYING   WAYS   BORE 

RELATION   TO 

-J  2rf)£  ijfountiing  of  'Smrrica 

_? 

«^  SPAIN,    ITALY,    FRANCE.    THE    NETHERLANDS 

SWEDEN.     GERMANY,    AND 

GREAT    BRITAIN 
THIS   WORK    IS    INSCRIBED 


PREFACE. 


AMERICA  is  sometimes  said  to  be  a  nation  without 
a  past.  The  remark  may  mean  much  or  Httle, 
according  to  its  appHcation.  It  is  made  most  frequently 
in  referring  to  ci\il  institutions.  In  particular,  there  has 
been  a  tendency  to  regard  the  Constitution  of  the 
United  States  as  without  sources  or  antecedents,  —  a 
new  invention  in  political  science. 

Mr.  Gladstone  has  obser\-ed,  that  "  as  the  British 
Constitution  is  the  most  subtle  organism  which  has  pro- 
ceeded from  progressive  history,  so  the  American  Con- 
stitution is  the  most  wonderful  work  ever  struck  off  at 
a  given  time  by  the  brain  and  purpose  of  man."  His 
words,  though  not  necessarily  carrj'ing  such  meaning, 
have  been  often  quoted  as  expressive  of  this  old-time 
idea,  that  the  American  Constitution  is  wholly  new,  — 
that  it  is,  in  fact,  an  original  creation  of  the  conven- 
tion which   met   in    Philadelphia   in    1787.^     What   Dr. 

^  Professor  Morey  well  expresses  this  idea :  "  The  organic  law 
under  which  he  [the  American]  lives  is  set  forth  in  a  written  docu- 
ment. It  was  put  into  form  at  a  given  time  and  place.  It  was 
fashioned  in  the  heat  of  discussion  bv  a  chosen  bodv  of  men,  whose 


viii  PREFA  CE. 

Von  Hoist  aptly  calls  the  "  worship  of  the  Constitu- 
tion "  '  has  largely  stimulated  the  idea.  The  philosophy 
of  modern  democracy  —  which,  under  the  influence  of 
the  theories  of  Rousseau,  long  ignored    historical    facts 

—  has  steadily  cultivated  it.  And  there  is  in  it  some 
truth ;  for  not  only  was  this  constitution  established  as 
a  written  document  by  the  convention,  and  in  circum- 
stances quite  unique,  but  it  has  elements —  many  of  them 
very  important — which  are  altogether  peculiar  and  char- 
acteristic. Hardly  strange  is  it,  that  such  traits  of  singu- 
larity should  attract,  as  points  of  differentiation  usually 
do,  a  somewhat  disproportionate  attention. 

But  it  is  beginning  to  be  realized  that  the  Constitution 
of  the  United  States,  though  possessing  elements  of 
novelty,  is  not,  after  all,  the  new  creation  that  this 
idea  would  imply.  It  is  not,  properly  speaking,  the 
original  composition  of  one  body  of  men,  nor  the  out- 
come of  one  definite  epoch,  —  it  is  more  and  better 
than  that.  It  does  not  stand  in  historical  isolation, 
free  of  antecedents.     It  rests  upon  very  old  principles, 

—  principles  laboriously  worked  out  by  long  ages  of 
constitutional  struggle.     It  looks  back  to  the  annals  of 

work  in  its  outlines  and  its  details,  he  is  accustomed  to  think,  was 
solely  the  product  of  their  creative  wisdom.  This  idea  was  formerly 
so  prevalent,  that  the  apotheosis  of  the  fathers  occupies  a  large  place 
in  American  political  literature;  and  this  view  is  not  confined  to 
native  writers."  —  Annals  of  the  American  Acade?ny  of  Political 
and  Social  Science,  April,  1891,  p.  530. 

1  Von  Hoist,  Constitutional  and  Political  History  of  the  United 
States,  I.  65. 


PREFACE.  ix 

the  colonies  and  of  the  mother-land  for  its  sources 
and  its  explanation.  And  it  was  rendered  possible,  and 
made  what  it  is,  by  the  poUtical  development  of  many 
generations  of  men. 

When  the  preparation  of  the  present  work  was 
undertaken,  some  years  ago,  there  existed  no  popular 
recognition  of  these  facts.  The  tendency  was  still  to 
regard  this  constitution  as  solely  the  creation  of  the 
Philadelphia  Convention ;  and  the  scant  allusions  to 
constitutional  genesis,  scattered  in  American  literature, 
had  seemingly  left  no  impression  on  the  general  mind. 
While,  however,  the  work  has  been  in  progress,  Amer- 
ican universities  have  gradually  taken  up  the  study  of 
constitutional  sources,  occasional  articles  touching  phases 
of  the  subject  have  been  published  in  periodicals,  and 
expUcit  references  to  it  have  found  their  way  into  current 
books,  so  that  public  opinion  has  been  ripening.^  The 
path  now  seems  opened  for  a  comprehensive  investiga- 
tion. Yet,  down  to  the  present,  no  volume  devoted  to 
the  theme  has  appeared. 

The  American  Constitution  is,  strictly  speaking,  the 
docutnent  which  goes  by  that  name.  The  present  work 
treats  of  the  document,  and  of  the  sources  of  its  con- 
tents, —  avoiding   all   side    issues.     ^Vhatever   influence 

1  Bryce,  American  Commonivealth,  has  some  references.  Hannis 
Taylor,  Origin  and  Graiuth  of  the  English  Cotistitution,  gives  in 
the  Introduction  a  brief  but  lucid  outline.  Douglas  Campbell, 
Puritan  in  Holland,  England,  and  America,  treats  of  American 
institutions  in  general,  but  says  little  of  the  Constitution  itself,  and 
that  little  is  practically  limited  to  the  question  of  Dutch  antecedents. 


X  PREFACE. 

various  European  races  may  have  exerted  upon  Ameri- 
can institutions  in  general,  as  existing  to-day/  the  ante- 
cedents of  this  great  national  document  are  traceable 
so  directly  and  so  almost  exclusively  through  colonial  and 
English  channels,  that  no  apology  is  necessary  for  taking 
such  channels  as  the  true  line  of  investigation.  The  aim 
has  been  to  place  in  the  hands  of  scholars  and  the  gen- 
eral public,  a  clear  and  concise  survey  of  the  salient 
features  of  such  constitutional  evolution. 

There  may  still  be  persons  in  America  who  are  un- 
prepared to  regard  with  favour  such  a  study,  and  who 
look  unwillingly  to  England  or  other  countries  for  the 
origin  of  institutions  they  have  long  been  accustomed  to 
consider  characteristically  modern  and  American.  But 
surely  Americanism  can  never  be  more  truly  American, 
than  when  it  welcomes,  not  merely  such  isolated  frag- 
ments of  fact  as  differentiate  the  United  States  from 
other  nationalities,  but  every  fact,  whatever  it  be,  that 
has  to  do  with  the  nation ;  and  among  these,  a  most 
important  fact  is  that  of  progression  from  the  Anglo- 
Teutonic  past.  In  reality,  the  light  that  comes  from 
historical  comparison  will  be  found  to  give  new  and 
heightened  colour  to  the  national  institutions,  and  to 
bring  out  more  clearly  than  anything  else  could  do,  their 
true  meaning  and  value. 

Englishmen  and  dwellers  on  the  Continent,  who  often 
appear  to  believe  that  the  example  of  America  leads 
toward  a  limitless  democratic  advance,  may  find  in  the 

^  Recent  claims  have  been  made  for  Dutch,  Scotch-Irish,  etc. 


PREFACE.  xi 

American  Constitution,  if  they  will,  a  balancing  element 
of  conservatism  that  should  not  be  lost  to  sight.  The 
American  loves  liberty,  but  liberty  regulated  by  prece- 
dent and  law.  In  an  age  when  democratic  and  socialistic 
theories  are  threatening  the  foundations  of  the  political 
and  social  fabric  of  the  civihzed  world,  it  can  scarcely  be 
unprofitable  for  earnest  thinkers  to  pause  and  consider, 
that  the  great  republic  possesses  in  its  method  of  govern- 
ment the  result,  not  merely  of  a  philosophy,  but  of  an 
historical  upgrowth. 

And  it  is  proper  to  observe,  that  there  are  Americans 
who  regard  with  dismay  the  tendency  of  those  in 
England  who  -seem  in  haste  to  modify  or  destroy  old 
English  institutions,  appearing  to  believe  that  America 
sets  the  example  of  such  destructiveness,  and  that  such 
a  road  is  the  way  of  progress.  England  would  do  well 
to  realize  that  the  American  institutions  which  have 
proved  the  most  successful  have  been,  very  often  at 
least,  the  working  out  of  ancient  English  principles  of 
free  government.  If  the  case  of  America  is  to  count 
for  anything,  it  may  count,  certainly  in  some  respects, 
on  the  side  of  a  careful  handling  of  those  old  principles. 
There  is  many  a  true-hearted  and  loyal  American  who 
would  deplore  the  spectacle  of  Enghshmen  breaking  with 
their  own  great  past. 

The  author  would  be  justly  deemed  ungrateful,  if  he 
failed  to  express  sincere  appreciation  of  the  important 
aid  given  him  by  distinguished  legal  and  historical 
scholars   in    Europe    and    America.      Special    mention 


xii  PREFACE. 

should  be  made  of  the  earnest  help  and  interest  ac- 
corded by  the  late  Sir  Henry  Maine.  Thanks  are  also 
due  to  many  kind  friends,  —  among  them  the  Rev. 
Henry  B.  Ensworth,  who  has  supplied  a  number  of  valu- 
able works ;  and  a  lady  who  has  aided  materially  in  the 
task  of  final  revision  for  the  press.  Despite  carefulness, 
the  author  is  fully  conscious  that  he  has  not  improbably 
fallen  into  mistakes,  —  for  all  which  he  begs  a  generous 
indulgence.  He  has  tried  to  see  the  facts  clearly, 
fairly,  fearlessly,  —  and  to  let  the  facts  tell  their  tale. 

January  i,  1894. 


CONTENTS. 


Chapter  Page 

I.    The  Anglo-American  Colonies      .        .        .        .         i 


J3 


II.  The  Making  of  the  American  Constitltion 

III.  Legi3l.\tr-e  Organism 59 

IV.  Legislative  Powers         ......  86 

V.  The  English  Executive.        .        .        .        .        •  117 

VI.    The  American  Executive 145 

VII.    The  Judiciary 17S 

VIII.     The  Bill  of  Rights 207 


APPENDIX.    The  Constitution  of  the  United  St.\tes   .     243 
INDEX .        .        ,        .     26^ 


CHAPTER   I. 

THE   ANGLO-AMERICAN   COLONIES. 

IT  has  been  a  prevalent  error  in  political  writings 
to  overestimate  intelligence,  and  underestimate  the 
power  of  what,  for  want  of  a  better  term,  may  be 
called  instinct.  This  error  appears  notably  in  the  writ- 
ings of  Grotius,  Hobbes,  Spinoza,  Pufifendorf,  Locke, 
Rousseau,  —  in  fact,  in  all  writings  where  the  origin  of 
government  is  explained  by  the  h)'pothesis,  now  ex- 
ploded, of  an  original  social  contract,  based  upon  the 
element  of  intelligent  selection.  A  safer  course  is 
adopted  by  some  recent  writers,  who  may  be  said  to 
incline  to  the  view  believed  to  have  been  first  advanced 
by  Aristotle,  which  regards  government  as  a  result  of 
natural  social  growth.^ 

1  Aristotle  says :  "  It  is  evident  that  a  state  is  one  of  the  works  of 
nature,  and  that  man  is  naturally  a  political  animal,  and  that  who- 
soever is  naturally  and  not  accidentally  unfit  for  society  must  be 
either  inferior  or  superior  to  man."  —  Welford's  translation  of  Aris- 
totle's Politics  ayid Economics,  6.  Mr.  Hannis  Taylor  gives  modern 
expression  to  this  old  thought :  " The  citjless  man  ((i;roXts)  —  the 
natural  man  of  Hobbes  and  Rousseau  —  must  be  more  or  less  than 
man,  —  either  superhuman  or  a  monster."  —  Origin  and  Growth  of 
the  English   Constitution,  5.     "  He  is  the  unit,"  Pollock  remarks. 


2  SOURCES   OF  THE    CONSTITUTION.        chap. 

The  later  theory  has  been  aptly  stated  thus  :  "  The 
long  continuance  of  a  people  under  any  given  political 
order  engenders  a  habit  and  action,  which  ripens  into  a 
political  instinct  and  becomes  powerful  in  determining 
the  form  of  institutions  and  the  direction  of  political 
progress.^     In  the  early  stages  of  political  life,  changes 

"  out  of  whom,  if  there  be  only  enough  of  them,  theorists  of  the 
Social  Contract  school  undertake  to  build  up  the  state.  This  is 
an  enterprise  at  which  Aristotle  would  have  stared  and  gasped."  — 
History  of  the  Science  of  Politics,  ().  "The  influence  of  this  con- 
tract theory  on  political  thought  lingers  even  to  this  day,  though  in 
a  constantly  diminishing  degree.  At  present  it  may  be  considered 
as  having  generally  given  place  to  the  view  first  advanced  by  Aris- 
totle."—  Crane  and  Moses,  Politics,  68. 

^  "  Intelligence,"  substantially  says  Professor  Joseph  Le  Conte, 
"  works  by  experience,  and  is  wholly  dependent  on  individual  expe- 
rience for  the  wisdom  of  its  actions;  while  instinct,  on  the  other 
hand,  is  wholly  independent  of  individual  experience.  If  we 
regard  instinct  in  the  light  of  intelligence,  then  it  is  not  individual 
intelligence,  but  cosmic  intelligence,  or  the  laws  of  nature  working 
through  inherited  brain  structure  to  produce  wise  results.  Intelli- 
gence belongs  to  the  individual,  and  is  therefore  variable,  that  is, 
different  in  different  individuals,  and  also  improvable  in  the  life  of 
the  individual  by  experience.  Instinct  belongs  to  the  species,  and 
is  therefore  the  same  in  all  individuals,  and  unimprovable  with  age 
and  experience.  ...  In  a  word,  intelligent  conduct  is  self-deter- 
mined and  becomes  wise  by  individual  experience.  Instinctive 
conduct  is  predetermined  in  wisdom  by  brain  structure.  The  for- 
mer is  free;  the  latter  is,  to  a  large  extent,  automatic." — Popular 
Science  Monthly,  October,  1875.  "  ^^^  ^^  ^^^  origin  of  instinct,  it 
can  hardly  be  said  that  any  theory  has  as  yet  gained  universal 
assent,  but  no  hypothesis  appears  more  worthy  of  acceptance  than 
that  which  regards  it  as  habit  grown  to  be  hereditary.  An  act  fre- 
quently performed  in  the  consciousness  of  a  specific  purpose  may 
continue  to  be  performed,  through  the  determinative  force  of  struc- 


I.  THE  ANGLO-AMERICAN  COLONIES.  3 

are  less  frequent  than  in  the  later  stages,  and  opportunity 
is  thereby  offered  for  the  ideas  of  social  organization 
peculiar  to  primitive  times  to  impress  themselves  upon 
the  mind,  and  in  the  course  of  centuries  of  political 
monotony  to  ripen  into  a  firmly  fixed  instinct.  Thus  the 
political  instincts  of  a  race  have  their  origin  in  a  pre- 
historic age,  in  an  age  when  generation  after  generation 
passes  away,  leaving  no  record  of  change  in  social 
forms,  or  of  the  acquisition  of  new  ideas.  And  it  is 
this  political  instinct  that  must  be  taken  account  of,  if 
we  would  fully  understand  political  progress ;  it  is  in 
its  force  and  persistence  that  we  discern  the  main  cause 
of  that  tendency  displayed  in  kindred  nations  to  pre- 
serve in  their  governments  the  essential  features  of  the 
primitive  political  institutions  of  the  race  to  which 
they  belong."^ 

Whether  such  philosophy  be  sound  or  not,  attention 
is  being  increasingly  drawn  at  the  present  day  to  the 
ascertained  fact  of  racial  influence  on  poUtical  develop- 
ment,—  the  essential  and  continuous  potency  of  racial 
institutions  in  the  life  of  nations.  Historical  writers 
have  directed  observation  to  the  actual  rise  of  modern 
governmental  systems  from  ancient  originals,  and  sci- 
entific writers  have  applied  the  theory  of  heredity  to 

ture,  after  the  consciousness  of  the  purpose  of  the  act  has  been 
lost.  When  this  peculiarity  of  structure  or  the  mental  bias  caused 
by  the  frequent  and  continued  exercise  of  the  mind  in  a  given 
direction  has  become  hereditary,  the  habit  has  grown  into  an 
instinct."  —  Crane  and  Moses,  Politics,  69. 
1  Ibid.  70. 


4  SOURCES   OF  THE    CONSTITUTION.        chap. 

politics,  and  have  asserted  the  well-nigh  automatic  play 
of  hereditary  traits  upon  national  career  and  destiny. 
Quite  aside  from  possible  extremes  of  speculation,  few 
persons  will  nowadays  question  the  reality  of  this  racial 
force. 

In  examining  into  the  sources  of  the  Constitution  of 
the  United  States,  it  will  be  found  necessary  to  bear  in 
mind  from  the  outset  that  the  nation  was  founded  by 
men,  the  great  majority  of  whom  were  of  the  English 
branch  of  the  Teutonic  race.^    The  colonists  were,  for 

^  Mr.  Douglas  Campbell  (^Puritan  in  Holland,  England,  and 
America),  in  his  effort  to  make  out  a  Dutch  origin  for  American 
institutions,  has  fallen  into  the  mistake  of  underestimating  English 
influence.  One  of  his  main  contentions  is  that  the  American  people 
are  not  of  English  race;  and  he  bases  this  assumption  upon  the 
fact  that  there  were  resident  along  with  the  English  in  the  colonies 
Welshmen,  Scotchmen,  Irishmen,  Scotch-Irishmen,  Dutch,  Ger- 
mans, Frenchmen  and  Swedes.  But,  for  the  purposes  of  the  pres- 
ent inquiry,  it  is  sufficient  to  remember :  — 

1.  The  above  statement  is  strictly  accurate:  "The  great  major- 
ity" of  the  settlers  were  of  "the  English  branch  of  the  Teutonic 
race."  Mr.  Campbell  admits  that  the  English  majority  was  over- 
whelming. 

2.  The  Scotch,  Welsh,  Irish,  and  Scotch-Irish  had  lived  under 
British  institutions  before  journeying  to  America.  They  had  passed 
through  an  English  constitutional  experience  as  really  as  had  their 
English  fellow-countrymen. 

3.  Those  of  other  races  resident  in  the  colonies  had  personal 
contact  for  several  generations  with  English  government  in  its 
imperial  and  colonial  forms. 

4.  All  colonists  alike  were  British  subjects;  and  English  admin- 
istration dominated  all,  as  completely  as  did  the  English  language. 

5.  The  Constitution  of  the  United  States  as  a  legal  document  is 
traceable  not  to  race  influences  in  any  vague  sense,  but  to  race 


I.  THE  ANGLO-AMERICAN  COLONIES.  5 

the  most  part,  of  one  blood.  Their  language  and  social 
usages  were  those  of  Great  Britain.  They  took  with 
them  to  America  not  merely  memories  of  political  insti- 
tutions, but,  to  a  considerable  extent,  the  English  law 
itself.  And  they  continued  for  a  century  or  more, 
despite  changing  conditions,  in  political  union  with 
England  as  members  of  one  empire.^ 

influences  as  worked  out  in  the  form  of  laws.  And  those  laws  were 
English. 

In  simple  truth,  the  presence  in  America,  during  colonial  days, 
of  the  representatives  of  other  races  than  the  English  has  left 
scarcely  a  trace  in  the  national  Constitution.  This  is  so,  notwith- 
standing the  fact  that  these  races  have  contributed  in  several  ways 
to  the  formation  of  the  national  spirit  of  the  Americans.  Thus  an 
acknowledgment  is  due  to  the  Dutch  —  themselves  Teutonic  —  who 
did  much  to  promote  the  love  of  freedom.  And  Mr.  Campbell,  in 
his  second  volume,  shows  that  the  influence  of  the  Scotch-Irish  was 
in  the  same  direction.  The  free  school,  the  use  of  a  written  ballot, 
certain  features  of  the  land  laws  and  of  the  township  system,  which 
Mr.  Campbell  mentions,  are  doubtless  traceable,  in  part  at  least,  to 
Dutch  sources;  and  though  not  included  in  the  Constitution,  have 
exercised  an  influence  in  moulding  the  American  nation.  It  would 
be  easy  to  exaggerate  this  influence,  especially  if  English  govern- 
ment in  America,  which  forms  the  great  fact  of  early  American  his- 
tory, should  be  left  out  of  the  account.  In  opening  for  investiga- 
tion a  most  interesting  question  —  the  question  of  Dutch  influences 
—  Mr.  Campbell  has  seemingly  erred  on  this  side.  His  very  able 
treatment  of  his  theme  renders  this  bias  the  more  regrettable. 

1  "The  people  were  proud  to  call  themselves  'Englishmen  away 
from  home,'  and  they  were  prompt  to  claim  all  the  rights  and  liber- 
ties of  English  subjects."  —  Landon,  Constitntioial  History  and  Gov- 
ernment of  the  United  States,  20.  Referring  to  the  persistence  of  the 
English  traits  in  the  race,  even  among  Americans  of  our  own  day. 
Professor  Hosmer  savs :  "  Can  it  be  said  that  the  stock  is  still  funda- 


6  SOURCES   OF  THE    CONSTITUTION.        chap. 

That  they  possessed  a  common  nationality  in,  and 
were  thus  subject  to  England  is  in  itself  an  important 
fact ;  for  a  strong  nation  never  fails  to  make  an  impress 
upon  the  minds  of  its  citizens  or  subjects,  and  it  edu- 

mentally  English,  however  large  may  have  been  the  inpouring  into 
its  veins  of  foreign  blood?  When  among  our  kin  beyond  sea  it 
was  urged,  not  long  since,  that  in  the  people  of  England  the  Anglo- 
Saxon  had  been  superseded;  that  Celt,  Frank,  Scandinavian,  Hol- 
lander, and  Huguenot  —  the  multitude  of  invaders  and  immigrants 
through  a  thousand  years —  had  reduced  the  primitive  element  to 
insignificance,  it  was  well  replied  by  Mr.  Freeman :  '  In  a  nation 
there  commonly  is  a  certain  element  which  is  more  than  an  ele- 
ment, something  which  is  its  real  kernel,  its  real  essence;  some- 
thing which  attracts  and  absorbs  all  other  elements,  so  that  other 
elements  are  not  co-ordinate  elements,  but  mere  infusions  into 
a  whole  which  is  already  in  being.  ...  If,  after  adopting  so 
many  .  .  .  we  remain  Englishmen,  none  the  less  surely  a  new  wit- 
ness is  brought  to  the  strength  of  the  English  life  within  us, — a 
life  which  can  thus  do  the  work  of  the  alchemist,  and  change  every 
foreign  element  into  its  own  English  being.'  \^Fow'  Oxford  Lec- 
tures, 1887,  p.  80.]  A  similar  statement  might  be  made  as  regards 
America.  .  .  .  The  stranger,  indeed,  has  been  with  us  from  the 
beginning:  Frenchman  and  Spaniard  preceded  us;  Celt,  Swede, 
Dutchman,  and  German  came  with  us  in  the  earliest  ships.  The 
overflow  of  Europe  .  .  .  has  poured  in  upon  us  in  an  inundation; 
yet  the  English  stock  remains,  —  the  element  which  is  more  than 
an  element,  the  real  kernel,  the  real  essence;  something  that  attracts 
and  absorbs  all  other  elements,  so  that  other  elements  are  not 
co-ordinate,  but  mere  infusions  into  a  whole  which  is  already  in 
being."  —  Hosmer,  Anglo-Saxon  Freedom,  312,  313.  He  gives 
evidence  of  this,  and  quotes  the  testimony  of  the  late  Professor 
Richard  A.  Proctor :  "  I  have  had  better  opportunities  than  most 
men  of  comparing  the  two  nations;  and  I  profess  I  find  the  differ- 
ence between  them  even  less  than  I  should  have  expected  from  the 
difference  in  the  conditions  under  which  the  two  nations  have  sub- 


I.  THE  ANGLO-AMERICAN  COLONIES.  7 

cates  and  powerfully  moulds  their  political  opinions. 
Nationality  creates  characteristic  traits  of  thought  and 
tendency.  And,  possibly  for  this  reason,  the  political 
development  of  colonies    has    been    usually,  in  all  the 

sisted  during  the  last  few  generations."  Sir  Edwin  Arnold,  com- 
menting upon  the  same  fact,  says  of  America :  "  I  have  found  myself 
everywhere  in  a  transatlantic  England.  I  do  not  say  that  in  any 
foolish  idea  that  to  be  '  quite  English  '  is  a  point  of  perfection.  .  .  . 
Half  an  American  as  I  am,  by  marriage  and  by  sympathies,  I  must 
confess  that  it  has  been  wholly  delightful  to  observe  this  unmistaka- 
ble and  minute  identihcation  of  the  races."  Mr.  Bryce  points  out 
the  process  of  foreign  absorption,  by  which,  though  immigrants 
usually  retain  their  foreign  traits  in  the  first  generation,  the  rising 
generation  rapidly  loses  its  old  nationality.  "  The  younger  sort," 
he  says  truthfully,  "  when  they  have  learned  English ;  when,  working 
among  Americans,  they  have  imbibed  the  sentiments  and  assimilated 
the  ideas  of  the  country,  are  henceforth  scarcely  to  be  distinguished 
from  the  native  population.  They  are  more  American  than  the 
Americans  in  their  desire  to  put  on  the  character  of  their  new 
country."  —  American  ConimotnvealtkjW.  '^2^.  Professor  Hosmer 
comments :  "  The  Anglo-Saxon  stock  has  been  made  rich  and 
strong  by  a  score  of  crossings  with  the  most  vigorous  and  intellec- 
tual of  modern  races;  but  it  remains,  nevertheless,  Anglo-Saxon. 
In  i8S6,  at  the  great  Colonial  Exhibition  in  London,  what  especially 
struck  the  American  visitor  was  the  identity  with  his  own  civiliza- 
tion of  the  civilization  represented  in  the  products  set  forth;  and 
the  similarity  to  himself  of  the  English-speaking  men  who  had 
gathered  there,  though  they  came  from  the  farthest  corners  of  the 
world.  Such  clothing  we  wear  ,  .  .  with  such  appliances  we,  too, 
mine,  work  the  soil,  sail  the  sea,  .  .  .  and  teach  the  young  idea  how 
to  shoot;  in  the  paintings  of  towns  at  the  antipodes,  which  some- 
times were  hung  on  the  walls,  the  streets  looked  like  those  of  any 
American  town;  the  frontiersman's  hut  in  the  remote  clearing,  as 
the  model  showed  it,  was  a  reproduction  of  the  log  cabin  of  Dakota 
or  Kansas.     If  the  .\merican  fell  into  talk  with  a  group  pausing  in 


8  SOURCES   OF  THE    CONSTITUTION.        chap. 

history  of  the  world,  through  forms  similar  to  those 
which  dominate  the  parent  people. 

When  in  the    early  part   of  the   seventeenth   century 
English   colonization    of  America   began,   England  had 

an  aisle  before  some  attractive  object,  though  one  might  be  from 
New  Zealand,  another  from  the  Faulkland  Islands,  a  third  from 
Natal,  and  a  fourth  from  Athabasca,  a  close  spiritual  and  intel- 
lectual relationship  was  at  once  developed.  All  had  read,  to  a 
large  extent,  the  same  books,  been  trained  in  the  same  religious 
faith,  disciplined  and  made  strongly  virile  by  that  priceless  polity, 
so  free  and  yet  so  carefully  ordered,  which  had  been  inherited  from 
Anglo-Saxon  ancestors,  or  thoroughly  assimilated  through  contact 
with  Englishmen.  '  Should  you  know,'  said  the  American,  '  that 
my  home  is  in  the  valley  of  the  Mississippi  ? '  'By  no  means,'  was 
the  reply;  'you  seem  to  me  like  my  neighbours  in  Aukland.'  And 
yet  it  was  two  hundred  and  fifty  years  since  the  ancestor  of  the 
American  had  left  his  home  in  Kent  to  go  to  the  New  World,  and 
the  New  Zealander  had  never  left  his  island  until  he  took  ship  a 
month  before  for  London.  '  You  seem  like  my  neighbours,'  also 
could  say  the  man  from  Cape  Town,  from  Fort  Garry,  from  Puget 
Sound,  from  the  gold  fields  of  Ballarat.  '  You  might  all  come  from 
this  or  that  English  county,'  said  a  Londoner,  who  had  joined  the 
group;  'you  are  no  more  diverse  from  one  another,  or  from  us, 
than  the  man  of  Yorkshire  from  the  man  of  Dorset;  the  Cumber- 
land shepherd  from  the  Leicestershire  farmer.  .  .  .  Substantially, 
they  were  identical  with  one  another  —  identical  too  with  the 
American  —  all  with  blood  enriched  by  infusion, .  .  .  but  not  changed 
in  frame  or  speech  or  soul  from  the  champions  who,  under  Alfred, 
or  Earl  Simon,  or  Cromwell,  or  Washington,  or  Lincoln,  fought  to 
sustain  Anglo-Saxon  freedom."  —  Anglo-Saxon  Freedom,  318-320. 
So  speaks  a  writer  of  our  time,  of  the  race  as  it  is  to-day  in  America, 
notwithstanding  the  changes  of  two  centuries,  and  those  other 
changes  wrought  by  modern  immigration.  The  race  during  the 
American  colonial  period — which  is  the  sole  point  that  the  present 
volume  has  to  consider  —  was  thoroughly  and  intensely  English. 


I.  THE  ANGLO-AMERICAN  COLONIES.  9 

long  been  a  fully  developed,  homogeneous  nation.  The 
Englishmen  of  the  reigns  of  Elizabeth  and  James  I. 
possessed  a  certain  stock  of  political  ideas  in  common. 
There  was  agreement  in  the  conception  of  certain  ele- 
ments of  government ;  and  the  principal  of  these  ele- 
ments were:  (i)  a  single  executive;  (2)  a  legislative 
body  consisting  of  two  houses,  the  upper  conservative, 
and  the  lower  representative  of  the  people  at  large  ;  (3) 
a  distinctive  judiciary.  There  was  also  agreement  in  (4) 
a  number  of  general  principles  —  such  as  trial  by  jury, 
the  essential  relation  of  representation  to  taxation,  and 
the  hke  —  derived  from  the  old  struggle  of  the  nation 
for  its  freedom.  It  was  natural  that  colonies,  set  off 
from  the  home  land  as  these  were,  should  manifest  a 
tendency  to  develop  such  governmental  institutions. 
And  this  was  the  actual  course  of  their  development. 
The  American  colonies  were  settled  mainly  by  English- 
men, and  were  subject  to  Great  Britain.  And  their 
institutions  were  mainly  of  an  English  nature,  except  as 
modified  by  the  provisions  of  the  royal  charters  under 
which  their  governments  were  organized,  and  by  the 
circumstances  that  attended  transplanting  to  a  new  soil.^ 

1  Professor  William  C.  Morey  (^Annals  of  American  Acadertiy  of 
Political  and  Social  Science.,  April,  1 891)  lays  emphasis  upon  the 
fact  that  the  charters  granted  by  the  sovereigns  for  the  colonies 
were  really  charters  of  commercial  corporations.  The  further  fact 
that  the  governmental  provisions  of  these  charters  closely  resem- 
bled the  outlines  of  the  English  government,  greatly  aided  the 
colonists  in  establishing  English  institutions.  The  colonists,  how- 
ever,  did   not   confine   themselves   to    charter   provisions.      What 


10  SOUJ?CES   OF  THE    CONSTITUTION.        chap. 

This  essential  political  fact  is  made  forcibly  clear  by 
any  examination  of  colonial  origin  and  progress.  Such 
examination,  at  least  in  brief,  is  called  for,  as  introducing 
the  present  theme.  In  entering  upon  it,  we  will  first 
consider  the  government  of  each  colony  separately,  and 
then  the  relation  of  the  colonies  collectively  to  the  home 
administration. 

The  earliest  permanent  English  settlement,  within  the 
present  territory  of  the  United  States,  was  in  Virginia, 
under  a  charter  granted  by  James  I.  in  1606.^  This 
charter,  which  was  followed  by  others  in  1609  and  16 12, 
provided  for  a  company  having  a  council  resident  in 
England  with  power  to  govern  under  regulations  and 
instructions  from  the  king.  As  the  colonists  began  to 
increase,  a  demand  was  set  up  for  a  voice  in  the  making 
of  the  laws.  "They  grew  restless  and  impatient,"  Judge 
Story  expresses  it,  "  for  the  privileges  enjoyed  under  the 

these  lacked  they  supplemented  by  a  direct  copying  from  British 
originals,  until  there  resulted,  by  action  of  the  people  themselves,  a 
close  assimilation  of  each  colonial  government  to  the  model  of  the 
government  of  the  mother-land.  "The  constitutional  development 
of  the  American  colonies  began  very  early.  The  colonial  system 
hampered  them  but  slightly,  and  that  chiefly  in  regard  to  trade. 
Assemblies  were  not  instituted,  but  grew  up  of  themselves,  because 
it  was  of  the  nature  of  Englishmen  to  assemble."  —  Seeley,  Expan- 
sion  of  England,  67.  As  Hutchinson  expresses  it,  "  This  year  (1619) 
a  House  of  Burgesses  broke  out  in  Virginia."  See  Robinson,  Pub- 
lications of  the  Atnerican  Academy  of  Political  and  Social  Science, 
No.  9,  p.  207. 

1  This  charter  is  given  in  Poore's  Charters  and  Constitutions, 
Part  II.,  p.  1888.  Also  it  may  be  found  in  Stith,  and  in  Hazard's 
Historical  Collections. 


I.  THE  ANGLO-AMERICAN  COLONIES.  11 

government  of  their  native  country."'  And  to  meet 
this  uneasmess,  Governor  Yeardly  called  together  repre- 
sentatives in  a  general  assembly  at  Jamestown  in  1619, 
and  allowed  them  legislative  powers.'-'  Story  adds : 
"  Thus  was  formed  and  established  the  first  representa- 
tive legislature  that  ever  sat  in  America.  And  this 
example  of  a  domestic  parliament  to  regulate  all  the 
internal  concerns  of  the  country  was  never  lost  sight  of, 
but  was  ever  afterwards  cherished  throughout  America  as 
the  dearest  birthright  of  freemen."  ^  So  acceptable  was 
it  to  the  people,  and  so  essential  to  the  real  prosperity  of 
the  colony,  that  the  council  in  England  issued  an  ordi- 
nance in  162 1,  which  gave  it  a  complete  and  permanent 
sanction.^     In  imitation  of  the  constitution  of  the  British 

1  Commentaries  on  the  Constitution  of  the  United  States,  I.  21, 
§46. 

-  Robertson's  America,  B.  9.  "  The  first  representative  legisla- 
tive assembly  ever  held  in  America  was  convened  in  the  chancel  of 
the  [Episcopal]  church  at  James  City  or  Jamestown,  and  was  com- 
posed of  twenty-two  burgesses  from  the  eleven  several  to«-ns,  plan- 
tations, and  hundreds  styled  Burroughs."  —  Narrative  and  Critical 
History,  III.  143.  In  1874  the  manuscript  account  of  the  trans- 
actions of  this  assembly,  from  the  State  Paper  Office,  London,  was 
published  as  a  State  Senate  Document;  Colonial  Records  of  Vir- 
ginia. In  1857  it  was  published  in  the  Collectio}ts  of  the  New  York 
Historical  Society. 

*  Commentaries  on  the  Constitution  of  the  United  States,  I.  21, 
§46. 

*  Referring  to  the  Jamestown  assembly  of  1619,  Professor  Thorp 
remarks :  "  Two  years  later,  on  the  24th  of  July,  the  council  of  the 
company  in  England  approved  the  course  of  the  assembly  by  pass- 
ing an  ordinance  establishing  a  written  constitution  for  Virginia. 


12  SOURCES   OF   THE    CONSTITUTION.        chap. 

Parliament,  the  legislative  power  was  lodged  partly  in  the 
governor,  who  held  the  place  of  the  sovereign ;  partly  in 
a  council  of  state  named  by  the  company,  and  partly  in 
an  assembly  composed  of  representatives  chosen  by  the 
people.  Each  branch  of  the  legislature  might  decide  by 
a  majority  of  votes,  and  a  negative  was  reserved  for  the 
governor.  But  no  law  was  to  be  in  force,  though  ap- 
proved by  all  three  parts  of  the  legislature,  until  it  had 
been  ratified  by  a  general  court  of  the  company,  and 
returned  to  the  colony  under  seal  of  the  court.  The 
ordinance  further  required  the  general  assembly  and  the 
council  of  state  "  to  initiate  and  follow  the  policy  of 
the  forms  of  the  laws,  customs,  and  manner  of  trial,  and 
the  administration  of  justice  used  in  the  realm  of  Eng- 
land, as  near  as  may  be." 

Thus  the  government  of  Virginia,  even  at  that  early 
date,  included  a  personal  executive  in  the  governor, 
representing  the  sovereign  ;  two  houses  of  legislature,  the 
lower  one  elected  by  the  people  ;  and  a  system  of  justice. 

By  the  annulling  of  the  charter  and  the  dissolution  of 
the  company  in  1624,  the  colony  came  under  the  rule 
of  the  king,  exercised  through  a  governor  and  twelve 
councillors  of  his  own  appointment ;  and  it  remained  a 
royal  province  down  to  the  American  Revolution.     For 

This  earliest  written  constitution  for  an  American  commonwealth 
was  modelled  after  the  unwritten  constitution  of  England,  and  it  is 
the  historical  foundation  of  all  later  constitutions  of  government  in 
this  country."  —  Story  of  the  Constitution,  2.(i.  See  Henning,  Stat., 
Ill;  Stith's  Virginia,  App.  No.  4,  321.  The  boasted  Connecti- 
cut constitution  was  of  later  date. 


I.  THE  ANGLO-AMERICAN  COLONIES.  13 

many  years  following  this  change,  there  was  no  second 
house  of  legislature ;  and  during  the  greater  part  of  the 
reign  of  Charles  I.,  the  sovereign  who  sought  to  govern 
without  a  Parliament  at  home,  succeeded  in  governing 
by  his  own  will  in  the  colony.  But  after  complaints,  and 
some  open  resistance,  Charles  sent  over  Sir  WiUiam 
Berkeley,  with  instructions  to  summon  elected  repre- 
sentatives, who  should  form,  with  the  governor  and  coun- 
cil, an  assembly  clothed  with  full  legislative  powers.  He 
also  set  up  courts  of  justice.  And  thus  for  the  second 
time  by  popular  demand,  Virginia  obtained  a  govern- 
ment embracing  the  essential  points  of  that  of  the 
mother  land.  English  common  law  underlay  the  colo- 
nial jurisprudence.  Trial  by  jury,  taxation  by  the  repre- 
sentatives of  the  people  in  assembly,  and  other  charac- 
teristic English  principles,  were  incorporated  into  custom 
and  regulation.  Such  was  Virginia  before  she  became  a 
State  of  the  American  union,  and  her  State  constitution 
was  essentially  an  outgrowth  of  this  colonial  adaptation 
of  Enghsh  usage. 

To  the  "  Governor  and  Company  of  Massachusetts  Bay 
in  New  England"  Charles  I.  granted  a  charter  in  1628,' 
intending  that  the  corporation  should  administer  its  affairs 
from  England.  Provision  was  made  for  a  governor, 
deputy  governor,  and  eighteen  assistants,  to  serve  as  a 
council,  with  permission  to  freemen  of  the  company  to 
attend  and  take  part  in  certain  general  meetings  annually. 
Laws  for  the  benefit  of  the  distant  colony  were  allowed 

1  Poore's  Charters,  I.  932;    Massachusetts  Records,  I.  3. 


14  SOURCES   OF   THE    CONSTITUTION.        chap. 

to  be  made,  "  so  as  such  laws  and  ordinances  be  not  con- ' 
trary  or  repugnant  to  the  laws  and  statutes  of  this  our 
realm  of  England."  But  in  the  year  following  the  grant 
of  the  charter,  by  a  bold  stroke  on  the  part  of  the  com- 
pany the  document  was  transferred  to  Massachusetts  ;  and 
it  became  thenceforth,  until  its  abrogation  under  James 
II.,  the  basis  of  government  by  the  colonists  within  the 
colony  itself.^  For  a  few  succeeding  years,  the  admin- 
istration was  conducted  by  a  General  Court  composed  of 
the  governor  and  assistants,  with  the  assembling  of  such 
freemen  as  were  capable  of  attending  in  person.  But  in 
1634  the  towns  sent  elected  delegates  to  represent  them, 
though  no  provision  for  such  a  course  was  to  be  found  in 
the  charter ;  and  ten  years  later,  the  governor  and  assist- 
ants on  one  hand,  and  the  representatives  on  the  other, 
definitely  separated  into  two  houses  of  legislature.  Thus 
in  Massachusetts,  as  in  Virginia,  the  outlines  of  English 
government  were  worked  out  in  local  usage  by  move- 
ment of  the  colonists  themselves. 

1  "  What  was  originally  organized  as  an  English  trading  company 
thus  became  an  American  colony,  with  its  constitution  and  govern- 
ment unchanged.  The  charter  of  1628  remained  the  colonial  con- 
stitution of  Massachusetts  until  1691,  when  it  was  superseded  by  a 
new  royal  charter,  which,  however,  confirmed  the  previous  frame  of 
government  in  its  essential  points,  save  that  the  governor  was  now 
appointed  by  the  crown.  It  should  be  noticed  that  by  this  charter 
of  1 69 1  the  colony  of  pilgrims  at  Plymouth,  Massachusetts,  who 
had  developed  an  independent  government  of  their  own,  without 
any  royal  sanction,  was  united  to  Massachusetts  Bay,  and  became  in- 
corporated into  the  same  political  organization."  —  Annals  of  Amer- 
ican Academy  of  Political  and  Social  Science,  April,  1891,  p.  550. 


I.  THE  ANGLO-AMERICAN  COLONIES.  15 

In  1646  the  General  Court  of  Massachusetts  sent  an 
address  to  the  Long  Parhament,  declaring :  '•  For  our 
government  itself,  it  is  framed  according  to  our  charter, 
and  the  fundamental  and  common  laws  of  England,  and 
conceived  according  to  the  same  —  taking  the  words  of 
eternal  truth  and  righteousness  along  with  them  as  that 
rule  by  which  all  kingdoms  and  jurisdictions  must 
render  account  of  every  act  and  administration  in  the 
last  day  —  with  as  bare  allowance  of  the  disproportion 
between  such  an  ancient  populous,  wealthy  kingdom,  and 
so  poor  an  infant,  thin  colony  as  common  reason  can 
afford."  They  then  endeavoured  to  demonstrate  the 
accuracy  of  their  statement  by  setting  forth  in  parallel 
columns  the  fundamental  laws  of  England  from  Magna 
Charta,  and  their  own  laws.' 

For  New  Hampshire,  the  king  issued  a  commission 
in  1679,  erecting  a  government  with  the  executive  power 
vested  in  a  president.  The  president  was  appointed  by 
the  sovereign,  and  was  aided  by  a  council,  also  of  royal 
appointment,  which,  together  with  popularly  elected 
representatives  or  burgesses,  composed  the  legislature. 
The  council  also  possessed  judicial  powers ;  and  it  was 
required  in  the  charter  that  "  the  form  of  proceedings 
in  such  cases,  and  the  judgment  thereon  to  be  given,  be 
as  consonant  and  agreeable  to  the  laws  and  statutes  of 
this  our  realm  of  England,  as  the  present  state  and 
condition  of   our  subjects   inhabiting  within  the   limits 

^  Palfrey,  History  of  New  Etiglaiid,  II.  174;  Hutchinson,  iViV 
tory,  I.  145,  146. 


16  SOURCES   OF  THE    CONSTITUTION.        chap. 

aforesaid,  and  the  circumstances  of  the   place  will  ad- 
mit."^ 

The  colonies  of  Connecticut "  and  New  Haven,  with- 
out awaiting  a  charter,  established  governments  of  their 

^  New  Hampshire  Provincial  laws,  ed.  177 1,  pp.  i,  3. 

2  "In  1639  a  written  instrument  was  signed  by  which  the  three 
towns  of  Windsor,  Wethersfield,  and  Hartford  became  associated 
as  one  body  politic.  Citizens  of  Connecticut,  with  very  just  pride 
point  to  this  instrument  as  the  first  American  written  constitution, 
for  the  compact  on  the  Mayflower  was  merely  an  agreement  to 
found  a  government,  leaving  its  character  to  be  determined  in  the 
future.  But  in  view  of  the  fact,  that  the  Netherland  republic  had 
for  about  half  a  century  been  living  under  the  '  Union  of  Utrecht,' 
which  was  a  written  constitution  pure  and  simple,  writers  are  hardly 
warranted  in  calling  this  the  first  instrument  of  the  kind  known  to 
history."  —  Campbell,  Ptiritan  in  Holland,  England,  and  America, 
II.  417.  "This  enactment  of  the  Connecticut  colonists  has  been 
extolled  as  '  the  first  example  in  history  of  a  written  constitution,  — 
an  organic  law  constituting  a  government  and  defining  its  powers.' " 
—  Bacon,  Constitutional  History  of  Connecticut,  5,  6.  Mr.  Bryce 
calls  it  the  oldest  truly  political  constitution  in  America.  —  Ameri- 
can Commonwealth,  I.  414,  note.  "  It  was,  no  doubt,  the  first 
written  constitution  which  was  enacted  by  the  independent  act  of 
the  people.  The  form  of  government,  however,  which  it  con- 
stituted was  simply  a  reproduction  of  that  of  the  Massachusetts 
Bay  Company,  sanctioned  by  the  charter  of  1628.  Whether  the 
independent  authority  exercised  by  the  Connecticut  colonists  was 
alone  sufficient  to  constitute  a  legal  government  was,  to  them  at 
least,  a  matter  of  question.  Aware  of  the  doubtful  nature  of  their 
title  to  exercise  sovereignty,  the  colonists  appealed  to  the  king,  and 
in  1662  received  a  royal  charter,  which  erected  the  colony  into  a 
corporate  company,  with  powers  and  privileges  similar  to  those 
already  given  to  the  Massachusetts  Bay  Company.  The  phrase- 
ology of  this  charter  throughout  is  almost  precisely  the  same  as  that 
employed  in  the  Massachusetts  charter  of  1628."  —  'WoxQy,  Annals 


I.  THE  ANGLO-AMERICAN   COLONIES.  17 

own,  consisting  of  governor,  assistants,  and  deputies  com- 
posing a  general  court.  The  two  colonies  were  merged 
by  the  charter  granted  to  Connecticut  at  the  restoration 
of  Charles  II.,  1662  ;  which  document  —  escaping  seizure 
at  the  hands  of  Sir  Edmund  Andros  in  the  reign  of  the 
last  Stuart  king,  by  being  secreted  in  an  oak  —  remained 
in  force  until  so  late  as  18 18,  when  the  State  constitution 
succeeded  to  it  and  was  modelled  upon  it.  A  bill  of 
rights  similar  to  that  of  Massachusetts  was  early  passed 
by  the  colony,  and  trial  by  jury  was,  with  other  English 
customs,  established  in  common  practice. 

Rhode  Island,  also  a  union  of  two  previously  existing 
colonies,  received  from  Charles  II.,  in  1663,  after  a  suc- 
cession of  political  vicissitudes,  a  charter  constituting  the 
usual  elements  of  government.  And  the  colony  itself  set 
forth  the  customary  bill  of  rights.  For  about  thirty  years 
afterwards,  the  general  assembly  met  as  a  single  cham- 
ber; but  from  1696,  the  governor  and  assistants  acted 
as  an  upper  house,  and  the  deputies  as  a  lower  house. ^ 
The  original  charter  remained  until  1842  the  funda- 
mental law  of  the  State,  and  was  not  until  then  super- 
seded by  a  State  constitution. 

Maryland  was  granted  by  a  patent  of  Charles  I.,  in 
1632,  to  Cecilius  Calvert,  Lord  Baltimore,  and  his  heirs, 
in  full  and  absolute  property,  saving  only  the  rights  of 

of  American  Academy  of  Political  and  Social  Science,  April,  1891, 
p.  551.  As  a  matter  of  fact,  the  royal  charters  were  the  first 
American  written  constitutions. 

*  Rhode  Island  Colony  Laws  (1744;,  24. 


18  SOURCES   OF  THE    CONSTITUTION.         chap. 

the  crown.'  The  patent  vested  in  the  proprietor  full 
executive  power,  and  the  privilege  of  making  laws,  with 
the  co-operation  of  the  colonists.  All  freemen  were 
permitted  to  take  part  in  legislation ;  and  the  first 
gatherings  for  the  purpose  were  held  in  1634  and  1635. 
But  in  1639,  i'^  consequence  of  the  increase  of  popu- 
lation, deputies  were  elected  to  represent  the  freemen. 
Eventually,  as  in  other  colonies,  the  assembly  was 
divided  into  two  houses."  And  among  the  earliest  laws 
adopted  was  one  declaring  "  that  the  inhabitants  shall 
have  all  their  rights  and  liberties  according  to  the  great 
charter  of  England."^ 

Originally  colonized  by  the  Dutch,  New  York  and 
New  Jersey  did  not  pass  into  English  hands  until  1664. 
Singularly,    however,    the    Dutch    occupation    left    very 

^  "  The  Province  was  made  a  county  palatine,  and  the  Proprietary 
was  invested  with  all  the  royal  rights,  privileges,  and  prerogatives 
which  had  ever  been  enjoyed  by  any  Bishop  of  Durham  within  his 
county  palatine." — A^arrative  and  Critical  History,  III.  520. 

2  "  The  details  of  political  organization  were  in  a  great  measure 
confided  to  the  discretion  of  the  proprietor,  whose  original  concep- 
tion of  a  constitution  consisted  of  a  governor,  council,  and  primary 
assembly  —  a  veritable  old  English  gemote  —  in  which  every  free- 
man had  the  right  to  represent  himself  and  to  vote.  Gradually,  as 
the  primary  plan  grew  inconvenient,  it  was  supplanted  by  a  repre- 
sentative system,  and  in  1647  ^^^  governing  body  was  divided  into 
two  chambers :  the  lower  consisting  of  an  elective  house  of  bur- 
gesses; the  upper,  of  the  councillors  and  of  those  specially  sum- 
moned by  the  proprietor."  —  Taylor,  Origin  and  Growth  of  the 
English  Constitution,  24. 

^ 'Qa^con,  Laws  of  Maryland,  c.  2,  1638;  c  i,  1650.  Assembly 
Proceedings  of  Alaryland,  1637  *o  1658,  p.  129. 


I.  THE  ANGLO-AMERICAN  COLONIES.  19 

little  permanent  result  of  a  constitutional  character.' 
The  territory  was  granted  to  the  Duke  of  York  by  two 
charters  of  Charles  II.,  one  given  before  and  the  other 
after  the  final  acknowledgment  of  the  conquest  on  the 
part  of  the  government  of  the  Netherlands.- 

1  "  The  Dutch  did  not  trouble  themselves  much  about  forms  of 
government."  —  Landon,  Constitutional  History  of  the  United  States, 

23- 

-  In  consequence  of  this  a  large  proportion  of  the  Dutch  in- 
habitants left  the  colony  and  returned  to  Europe. 

Since  Mr.  Douglas  Campbell  made  his  assertion  of  Dutch  as 
against  English  influence  upon  the  institutions  of  the  United  States, 
it  has  become  customary  in  New  York  and  some  other  localities 
to  repeat  and  amplify  his  allegations.  When  this  is  done  by 
Americans  of  Dutch  ancestry,  no  one  need  wonder;  but  when  the 
utterances  proceed  from  other  sources,  and  are  marked  by  a  rhe- 
torical rather  than  historical  tone,  they  are  to  be  regarded  differ- 
ently. The  lines  of  argument  used  by  such  writers  commonly 
repeat  themselves.  (l)  It  is  claimed  that  America  was  influenced 
by  Holland,  because  Holland  exerted  an  influence  over  England. 
But  it  is  evident  that  this  particular  line  of  influence,  whatever 
it  may  have  been,  reached  America  through  England.  Little  is 
said  by  these  one-sided  writers  of  any  influence  exerted  by  England 
over  Holland.  (2)  It  is  claimed  that  because  the  Pilgrims  and 
some  of  the  early  Puritans  passed  through  Holland  on  their  way  to 
America,  they  were  controllingly  influenced  by  the  Dutch.  But 
there  is  practically  an  ignoring  of  the  fact  that  these  men  had  spent 
the  greater  part  of  their  lives  in  England,  and  were  by  birth  and 
blood  Englishmen.  (3)  It  is  claimed  that  by  means  of  commercial 
transactions,  Holland  and  New  Amsterdam  influenced  the  social 
life  of  the  colonists.  But  the  long  and  bitter  hostility  of  the  colo- 
nists toward  the  Dutch  is  unmentioned.  And  the  fact  is  left  out 
of  sight,  that  the  main  contact  and  commerce  of  the  colonies  down 
to  the  very  last,  was  with  England.  It  is  not  worth  while  to  follow 
these  writers  further  in  such  irresponsible  toying  with  sober  history. 


20  SOUJiCES   OF  THE    CONSTITUTION.        chap. 

Under  the  second  charter,  the  Duke  ruled  New  York 
until  his  own  accession  to  the  crown  as  James  II.  No 
general  assembly  was  summoned  for  eight  years,  but  pop- 
ular clamour  became  so  great,  that  in  1682  the  governor 
was  authorized  to  establish  one,  with  the  right  of  making 
laws  subject  to  approval  by  the  proprietor.'  Six  years 
later  the  colony  declared  for  William  and  IMary ;  and 
thereafter,  although  without  charter,  it  was  governed 
as  a  royal  province  by  crown-appointed  governors,  and 
with  regular  sessions  of  the  legislature.  The  laws  indi- 
cate closer  adherence  to  the  policy  of  England  than  do 
those  of  any  other  colony,  and  the  British  common  law 
was  the  basis  of  jurisprudence.^ 

Undoubtedly  nations  do  affect  one  another  through  example,  insti- 
tutions, literature,  and  commerce.  England  and  Holland  have  thus 
exerted  an  influence  upon  each  other.  So  also  have  England  and 
France.  So  have  America  and  European  peoples  other  than  the 
Dutch.  Dutch  influence  upon  the  United  States  has  doubtless 
been  real  in  several  ways.  But  nothing  can  be  gained  by  the 
effort  of  enthusiasts  to  exaggerate  that  influence,  or  to  assert  for  it 
a  place  comparable  with  the  influence  of  England. 

^  This  assembly  "  was  formally  called  by  the  governor,  as  the 
duke's  representative,  in  answer  to  a  popular  petition  for  a  govern- 
ment like  that  of  the  N'exv  England  colonies.  These  enactments, 
under  the  name  of  a '  charter  of  liberty,'  vested  the  government  in  the 
hands  of  a  governor,  council,  and  representative  assembly,  with 
powers  similar  to  those  possessed  by  the  corresponding  branches  in 
A'ezv  England ;  and  these  enactments  were  approved,  not  only  by 
the  governor  and  the  duke,  but  also  by  the  king."  —  Annals  of  Ameri- 
can Academy  of  Political  and  Social  Science,  April,  1891,  p.  553. 

"^  As  New  York  was  originally  settled  by  the  Dutch,  the  complete 
supremacy  of  English  constitutional  law  and  usage  is  the  more 
remarkable.     Some  Dutch  usages  linger  (see  Campbell,  Puritan  in 


I.  THE  ANGLO-AMERICAN  COLONIES.  21 

New  Jersey  was  granted  by  the  Duke  of  York,  in  1664, 
to  Lord  Berkeley  and  Sir  George  Carteret,  on  the  same 
terms  as  he  himself  held  New  York ;  and  these  pro- 
prietors  in    1664-65  made  to  the  people  a  concession 

Holland,  England,  and  America^ ;  but  their  number  seems  to  be 
relatively  small,  —  so  small  that  Dutch  influence  was  until  recently 
almost  forgotten.  When  the  lirst  charter  was  granted  to  the  Duke 
of  York,  "  no  laws  contrary  to  those  of  England  were  allowed."  — 
Story,  Commentaries  on  the  Constitution,  I.  75,  §  112.  The 
supremacy  of  the  Englishmen,  with  their  characteristic  claims  of 
liberty,  is  evidenced  by  the  exclamation  of  the  governor  to  the  legis- 
lature in  1697:  "There  are  none  of  you  but  what  are  big  with  the 
privileges  of  Englishmen  and  Magna  Charta."  —  Landon,  Constitu- 
tional History  of  the  United  States,  24.  Among  the  earliest  acts 
was  one  declaring  the  right  to  enjoy  the  liberties  and  privileges  of 
Englishmen  by  Magna  Charta. — Smith,  yV<fT£/  York,  127,  75,  76; 
Acts  of  1 69 1.  Story  remarks :  "  In  examining  the  subsequent  legis- 
lation of  the  province,  there  do  not  appear  to  be  any  very  striking 
deviations  from  the  laws  of  England;  and  the  common  law,  beyond 
all  question,  was  the  basis  of  its  jurisprudence.  .  .  .  Perhaps  New 
York  was  more  close  in  adoption  of  the  policy  and  legislation  of  the 
parent  country  before  the  Revolution,  than  any  other  colony."  — 
Commentaries  on  the  Constitution,  I.  77,  78,  §  1 14.  The  facts  are 
well  summarized  by  Crane  and  Moses ;  "  New  York  we  find  owed 
its  first  settlement,  like  many  other  colonies,  to  a  speculative  corpo- 
ration. The  Dutch  West  India  Company,  under  its  charter  from 
the  government  of  the  Netherlands,  undertook  to  colonize  the  new 
territory  in  the  neighbourhood  of  the  Hudson  River.  It  is  not  neces- 
sary to  our  purpose  to  examine  very  closely  the  history  of  this  com- 
mercial venture,  because  the  Dutch  regime  made  little  or  no 
impression  politically,  however  great  its  impression  socially,  upon 
the  future  State.  .  .  .  The  elements  of  local  selfgovernment  then 
existing  in  Holland  were  not  transplanted.  It  is  from  the  capture 
by  the  English,  in  1664,  that  the  political  life  of  New  York  dates." 
—  Politics,  117.  ^^ 


22  SOURCES   OF   THE    CONSTlTUT/OiV.        chap. 

of  the  customary  forms  of  government.  After  political 
vicissitudes,  the  proprietary  control  terminated  in  the 
reign  of  Queen  Anne.  But  though  the  colony  had  no 
charter,  and  was  ruled  under  royal  commissions,  the 
local  model  of  government  remained  practically  un- 
changed.' 

The  settlement  of  Pennsylvania  and  Delaware  by  the 
Dutch  and  Swedes  was,  as  in  the  case  of  the  original 
settlement  of  New  York,  without  much  political  result. 
William  Penn  obtained  a  patent  as  proprietor  in  1631, 
and  purchased  in  the  following  year  the  rights  of  the 
Duke  of  York  over  the  Three  Lower  Counties  of  Dela- 
ware. The  patent  empowered  Penn  and  his  successors 
to  make  laws  and  raise  taxes,  with  the  consent  of  the 
freemen  of  the  country,  the  king  reserving  right  of 
veto.  The  proprietor  was  permitted  to  appoint  judicial 
and  other  officials,  to  grant  pardons  and  reprieves,  to 
erect  courts,  to  establish  corporations,  manors,  and  ports, 
and    to   execute  locally   other  functions  of  the  crown.- 

1  "  In  all  these  changes  of  authority,  the  form  of  government 
established  .  .  .  retained  the  general  form  which  already  prevailed 
in  New  England,  which  type  was  more  consciously  followed  than 
that  of  the  south,  although  there  was  no  essential  difference  between 
the  political  forms  of  the  two  sections."  —  Annals  of  American 
Academy,  April,  1891,  p.  554. 

-  It  has  been  remarked,  as  a  strange  omission  in  this  charter,  that  no 
provision  exists  to  the  effect  that  the  inhabitants  and  their  children 
shall  be  deemed  British  subjects,  and  entitled  to  all  the  liberties  and 
immunities  thereof,  such  a  clause  being  found  in  every  other  char- 
ter. Chalmers  has  observed  that  the  clause  was  unnecessary,  as 
allegiance  to  the  crown  was  reserved;  and  the  common  law  thence 


I,  THE  ANGLO-AMERICAN  COLONIES.  23 

After  some  variation  in  the  system  of  government,  a 
final  charter  was  established  in  1701,  providing  for  a 
governor,  council  of  state,  and  assembly  of  deputies.' 
Delaware  sent  representatives  until  accorded  a  legislature 
of  her  own  in  i  703. 

Carolina  was  granted  to  Lord  Clarendon  and  others 
by  Charles  II.  The  earliest  government  was  set  aside 
in  1669  by  a  plan  originating  in  the  brain  of  the  phi- 
losopher Locke,  which  contemplated  an  elaborate  system 
of  offices  of  state,  an  hereditary  nobility,  and  similar 
features,  impossible  of  realization  in  an  infant  settlement 
of  scattered   planters.-     But   in    1691    this    system  was 

inferred  that  all  the  inhabitants  were  subjects,  and  of  course  were 
entitled  to  all  the  privileges  of  Englishmen.     See  Annals,  639,  658. 

^  See  Campbell,  Puritan  in  Holland,  England,  and  America. 
He  claims  that  a  few  Dutch  elements  crept  into  the  institutions 
of  Pennsylvania,  and  partly  accounts  for  their  existence  by  point- 
ing out  that  the  mother  of  William  Penn  was  Dutch.  However 
this  may  be,  Penn's  father  and  family  were  English,  and  he  always 
accounted  himself  an  Englishman.  That,  with  local  modifications, 
the  institutions  of  Pennsylvania  were  essentially  English,  cannot  be 
historically  questioned;  and  the  presence  of  an  occasional  feature 
of  possibly  Dutch  origin  only  serves  to  accentuate  the  predominance 
of  the  English  features  that  make  up  the  whole  body  of  the  laws. 

-  "The  proprietors  attempted  to  create  a  political  fabric  through 
the  aid  of  Locke  —  a  philosopher  of  the  Social  Contract  school  — 
whose  Fundamental  Constitutions  quickly  illustrated  how  vain  it  was 
to  attempt  to  govern  Englishmen  by  a  paper  constitution  whose 
complicated  and  artificial  details  offended  the  national  instinct  by 
departing  from  the  primitive  tradition."  — Taylor,  Origin  and  Growth 
of  the  English  Constitution,  24.  These  constitutions  may  be  seen 
in  their  first  state  in  Carroll,  II.  361 ;  and  the  modifications  are 
given  under  the  years  of  issue  in  the  Shaftesbury  Papers.     See, 


24  SOURCES   OF  THE    CONSTITUTION.        chap. 

abrogated  by  popular  demand.  Carolina  became  a 
royal  province  in  1729,  with  the  usual  form  of  colonial 
government.  The  governor  convened,  prorogued,  and 
dissolved  the  legislature,  and  had  the  right  of  veto  on 
its  enactments.  He  appointed  civil  and  military  officers, 
and,  as  has  been  tersely  said,  was  "  invested,  as  far  as 
compatible,  with  the  executive  and  judicial  powers  of 
the  English  monarch."  ^  North  and  South  Carolina, 
long  practically  divided  for  reasons  of  convenience,  were 
eventually  separated,  each  having  a  government  of  its  own. 

Georgia  was  founded  in  1732  with  a  charter  from 
George  II.  Its  earliest  administration,  by  a  company 
resident  in  England,  was  so  unsuccessful  that  this  char- 
ter was  soon  surrendered,  and  the  colony  became  a  royal 
province  with  government  of  the  customary  form.- 

The  necessary  repetition  in  these  details  of  the  politi- 
cal systems  of  the  colonies  is  not  without  value,  as  evi- 
dence of  the  unanimity  with  which  the  colonies  followed 
a  common  model.  Where,  at  first,  in  charter  or  usage, 
some  features  of  this  model  were  lacking,  popular  de- 

also,  Carolijia  Charters,  London,  ■^■^,  etc.  A  recent  biographer  of 
Locke  (H.  R.  Bourne)  notes  that  the  plan  was  initiated  by  Shaftes- 
bur}',  and  modified  by  other  proprietors;  and  although  Locke  had 
a  large  share  in  the  work,  not  all  the  features  were  such  as  he  him- 
self approved. 

1  Crane  and  Moses,  Politics,  123. 

2  "  In  respect  to  its  ante-revolutionary  jurisprudence,  a  few  re- 
marks may  suffice.  The  British  common  and  statute  law  lay  at  the 
foundation.  The  same  general  system  prevailed  as  in  the  Caroli- 
nas,  from  whence  it  sprung."  —  Story,  Commentaries  on  the  Consti- 
tution of  the  United  States,  L  99,  §  145. 


I.  THE  ANGLO-AMERICAN  COLONIES.  25 

mand  invariably  was  made  by  the  colonists  themselves, 
for  the  supply  of  the  lack,  until  the  full  outline  of  English 
governmental  institutions  was  completed,  as  far  as  was 
applicable  to  colonial  conditions.^ 

Referring  to  this  subject,  and  to  the  persistence  of  the 
old  tendency  even  in  later  and  more  modern  States  of 
the  American  Union,  Mr.  Bryce  observes  :  "  The  simi- 
larity of  the  frame  of  government  in  the  thirty-two  repub- 
lics which  make  up  the  United  States  —  a  similarity 
which  appears  the  more  remarkable  when  we  remember 
that  each  of  the  republics  is  independent  and  self-deter- 
mined as  respects  its  frame  of  government  —  is  due  to 
the  common  source  whence  the  governments  flow.    They 

1  The  scope  of  the  present  volume  does  not  admit  of  a  discussion 
of  the  interesting  questions  associated  with  the  history  of  American 
townships  and  local  government.  It  is  just  possible  those  questions 
have  been  pressed  too  far.  But  the  student  of  ancient  institutions 
must  recognize  their  great  importance.  Nor  can  he  fail  to  appre- 
ciate the  force  with  which  evidence  drawn  from  such  sources 
confirms  the  truth  of  the  development  of  American  governments 
from  the  historic  past.  See  Scott,  Development  of  Constittitional 
Liberty,  174;  Fiske,  American  Political  Ideas,  17-56;  Fiske, 
"Town  Meeting,"  Harper'' s  Magazine,  January,  1885  ;  Professor 
Adams,  "Germanic  Origin  of  New  England  Towns,"  in  Johns 
Hopkins  University  Studies,  ist  Series,  II.;  E.  Channing,  "Town 
and  County  Government,"  Ibid.,  2d  Series,  X. ;  Doyle,  English 
Colonies  in  America.^  Puritan,  etc.,  II.  7-26;  Professor  Andrews, 
"Origin  of  Conn.  Towns,"  Annals  of  American  Academy,  Vol. 
I.;  Ilildreth,  History,  I.  chap,  vii.;  De  Tocqueville,  Boiven''s 
Translation,  Democracy  in  America,  I.  chap,  v.;  Parker,  Origin, 
Organization  and  Influence  of  Towns  of  New  England ;  Massa- 
chusetts Historical  Society,  1866-67,  ^^^-  See  also  Statutes  of 
New  England  States,  Law  Reports,  etc. 


26  SOURCES   OF   THE    CONSTITUTION.        chap. 

are  all  copies,  some  immediate,  some  mediate,  of  ancient 
English  institutions ;  viz.  chartered  self-governing  cor- 
porations, which  under  the  influence  of  English  habits 
and  with  the  precedent  of  the  English  parliamentary 
system  before  their  eyes,  developed  into  governments 
resembling  that  of  England  in  the  eighteenth  century. 
Each  of  the  thirteen  colonies  had,  up  to  1776,  been  reg- 
ulated by  a  charter  from  the  British  crown,  which,  ac- 
cording to  the  best  and  oldest  of  all  English  traditions, 
allowed  it  the  practical  management  of  its  own  affairs. 
The  charter  contained  a  sort  of  skeleton  constitution 
which  usage  had  clothed  with  nerves,  muscles,  and  sin- 
ews, till  it  became  a  complete  and  symmetrical  working 
system  of  free  government."  ^ 

"  The  English  Constitution  was  generally  the  type  of 
these  colonial  governments,"  remarks  Sir  Erskine  May. 
"  The  governor  was  the  viceroy  of  the  crown  ;  the  legis- 
lative council,  or  upper  chamber,  appointed  by  the  gov- 
ernor, assumed  the  place  of  the  House  of  Lords,  and 
the  representative  assembly,  chosen  by  the  people,  was 
the  express  image  of  the  House  of  Commons."  ^  In 
the  words  of  the  author  of  the  History  of  the  English 
People,  "  The  colonists  proudly  looked  on  the  constitu- 
tions of  their  various  States  as  copies  of  that  of  the  mother- 
country.  England  had  given  them  her  law,  her  language, 
her  religion,  and  her  blood."  ^ 

^  Bryce,  American  Commonwealth^  I.  458. 

2  Constihdional  History  of  England,  II.  511. 

3  Green,  History,  V.  217,  §  1440. 


I.  THE  AXGLO-AMERICAN  COLOXIES.  27 

But  the  American  colonies  not  only  copied  English 
institutions ;  they  long  remained  politically  united  to 
Great  Britain,  and  her  government  long  continued  to  be 
their  own  supreme  or  imperial  government.  Though 
every  colony  was  independent  of  every  other  colony,  and 
possessed  much  freedom  of  local  administration,  yet  al- 
legiance to  the  mother-country  and  to  the  throne  bound  all 
together,  and  prepared  the  way  for  the  subsequent  federal 
system  of  the  United  States.  There  was,  in  fact,  even  then, 
a  beginning  of  the  federal  system,  and  London  was  the 
colonial  capital,  as  Washington  of  to-day  is  the  federal 
capital.^  The  colonists  were  British  subjects.  The  king 
was  •'  supreme  and  sovereign  lord  "  of  all  alike.  —  the  cen- 
tral executive.  Parliament,  with  whatever  limitations  in 
practice,  was  the  central  legislature,  and  the  Pri\y  Coun- 
cil exercised  the  jurisdiction  of  supreme  judicial  tribunal. 

The  authorit}^  of  the  king  was  employed  with  a  varj'ing 
degree  of  directness  in  different  colonies.  His  preroga- 
tives were,  for  the  most  part,  put  in  operation  by  the 
local  governors.  In  crown  colonies,  where  the  royal 
contact  was  closest,  ci\-il  government  largely  depended 
upon  special  instructions  and  commissions  issued  from 
time  to  time  directly  from  the  throne.  Colonial  legisla- 
tion was  subject  to  the  sovereign's  approval  or  veto.  All 
charters  were  granted  by  him,  and  his  powers  were  exer- 
cised on  occasion  in  other  acts  affecting  the  fimdamental 
status  of  colonial  administration.- 

1  The  analog)"  is  not  close,  but  it  is  real  as  far  as  it  goes. 

2  "  The  fact  that  the  soil  upon  which  the  English  colonies  in 


28  SOURCES   OF  THE    CONSTITUTION.        chap. 

Parliament  made  laws  for  the  supreme  government 
of  the  colonies.  While  some  confusion  of  ideas  existed 
as  to  the  proper  exercise  of  this  power,  the  power  was 
always  claimed  unlimitedly  by  Parliament  itself,  and  its 
operation  was  willingly  conceded  by  the  colonists  in 
cases  affecting  foreign,  commercial,  and  Indian  affairs, 
and  what  might  be  called  imperial  as  distinct  from  in- 
ternal interests.  The  legislation  of  the  colonial  assem- 
blies was,  indeed,  occasionally  annulled  by  a  board  or 
council  in  England,  as  well  as  by  Parliament.  And 
denial  of  all  parliamentary  authority,  though  made  in 
some  of  the    colonies  after  the  passage  of  the  Stamp 

America  were  planted,  came  to  them  through  royal  grants,  the 
fact  that  every  form  of  political  organization  established  thereon 
rested  upon  royal  charters,  were  the  foundation  stones  upon  which 
the  colonists  gradually  built  up,  in  the  light  of  their  actual  experi- 
ence, their  theory  of  the  political  relations  which  bound  them  to  the 
mother-country.  Their  rights  as  Englishmen  endowed  with  '  all 
liberties,  franchises,  and  immunities  of  free  denizens  and  natural 
subjects '  flowed  from  their  charters,  which,  as  between  themselves 
and  the  crown,  were  irrevocable  though  not  non-forfeitable  contracts. 
The  earliest  form  of  direct  legislative  control  to  which  any  of  the 
colonies  were  subjected  in  the  form  of  ordinances  or  instructions  for 
their  government  emanated,  not  from  the  law-making  power  of 
the  king  in  Parliament,  but  from  the  ordaining  power  of  the  king 
in  council.  And  at  a  later  day,  when  the  colonial  assemblies  began 
the  work  of  legislation  on  their  own  account,  the  validity  of  their 
enactments  depended,  not  upon  the  approval  of  the  English  Parlia- 
ment, but  upon  that  of  the  royal  governor,  who  stood  as  the  ever- 
present  representative  of  his  royal  master.  With  the  founding  of 
the  colonies,  and  with  the  organization  of  their  political  systems, 
the  crown  had  everything  to  do."  — Taylor,  Origin  and  Growth  oj 
the  English  Constitution,  25,  26. 


I.  THE  ANGLO-AMERICAN  COLONIES.  29 

Act  of  1765,  was  not  general  until  the  verge  of  actual 
separation  from  the  mother-country. 

The  jurisdiction  of  the  Privy  Council  as  a  supreme 
court  for  colonial  affairs,  in  appeals  from  decisions  of 
the  colonial  judiciary,  and  in  other  matters,  was  con- 
stantly exercised.  And  it  was  fully  recognized  by  all 
the  colonies  at  the  period  of  the  American  Revolution, 
and  regarded  as  a  benefit  and  protection. 

Yet  notwithstanding  mutual  ties  of  blood  and  insti- 
tutions, it  is  easy  to  perceive,  looking  back  from  our 
cwTi  time,  that  there  existed  fair  opportunity  for  friction, 
and  even  for  eventual  separation  in  the  somewhat  com- 
plex and  vaguely  defined  relations,  and  in  the  gradually 
diverging  interests  of  Great  Britain  and  her  distant 
children.  Among  causes  of  uneasiness  is  often  men- 
tioned the  development  of  a  democratic  tendency  among 
the  colonists,  manifesting  itself  in  varied  forms,  but 
chiefly  in  contests  between  the  legislatures  and  the 
royal  governors.  This  tendency,  which  eventually  be- 
came characteristic,  is,  perhaps,  not  to  be  wondered 
at,  if  it  be  remembered  that  the  colonists  were  com- 
moners, without  the  restraining  presence  of  a  resident 
nobility,  and  that  the  colonial  period  was  a  period 
which  witnessed  the  overthrow  of  Charles  I.  by  his 
House  of  Commons,  the  rise  of  the  English  Common- 
wealth, and  the  Revolution  of  1688,  as  contemporaneous 
movements  in  the  mother-country,  ending  in  the  modern 
control  of  the  crown  by  the  popular  branch  of  Parlia- 
ment.     But  the  truth  is,  that  as  the  colonists   grew  in 


30  SOURCES    OF   THE    CONSTITUTION.        chap. 

numbers  and  material  wealth,  and  began  to  realize  their 
own  power,  interference  across  seas  came  to  be  less 
and  less  easy  to  maintain  on  one  side,  or  to  endure  on 
the  other.  And  with  the  fall  of  Canada  and  the  con- 
sequent overthrow  of  a  threatening  French  power  in 
the  north  and  west,  America  ceased  to  feel  the  need 
of  dependence  upon  the  empire. 

Yet  although  a  sense  of  the  inevitable  approach  of 
American  independence  came  to  find  expression  even 
among  keen  foreign  observers  on  the  continent  of 
Europe,'  the  colonists  themselves,  up  to  the  very 
eve  of  war,  were  averse  to  the  thought  of  actual 
separation.  The  records  of  the  time  are  filled  with 
evidences  of  the  powerful  hold  which  the  mother-country 
had  upon  their  hearts.  They  loved  Great  Britain  as 
their   old    home."     "They   regarded,"    remarks    Froth- 

^  "  Turgot  and  Choiseul  had  very  early  recognized  that  the  separa- 
tion of  the  colonies  from  the  mother-country  was  only  a  question  of 
time." — Von  Hoist,  Constitutional  History  of  (he  United  States, 
I.  I.  See  also  Bancroft,  History  of  the  United  States,  IV.  399. 
Durand  wrote  in  August,  1766,  "They  are  too  rich  to  remain  in 
obedience."  See  also,  Frothingham,  Hise  of  the  Republic  of  the 
United  States. 

■^  "  This  feeling  was  not  an  easy  one  to  eradicate,  for  it  was  based 
in  blood,  training,  and  sympathies  of  every  nature.  It  would  not 
have  been  easy  to  distinguish  the  American  from  the  Englishman; 
it  would,  indeed,  have  been  less  easy  than  now,  when  the  full  effects 
of  a  great  stream  of  immigration  have  begun  to  appear.  American 
portraits  of  the  time  show  typical  English  faces.  Whenever  life 
was  relieved  of  the  privations  involved  in  colonial  struggle,  the  per- 
son at  once  reverted  to  the  type  which  was  then  the  result  of  cor- 
responding conditions  in   England.     The  traditions  of  American 


I.  THE   ANGLO-AMERICAN  COLONIES.  31 

ingham,  "  their  connection  with  the  mother-country  to 
be  a  fountain  of  good.  They  looked  upon  the  Enghsh 
Constitution  as  their  own."^  Even  in  the  midst  of  the 
final  contest,  so  great  a  leader  as  the  elder  Adams  could 
write :  "  Would  to  God,  all,  even  our  enemies,  knew 
the  warm  attachment  we  have  for  Great  Britain."-  And 
John  Adams,"  referring  to  "  the  habitual  affection  for 
England,"  during  colonial  times,  was  able  to  declare 
truthfully  that  "no  affection  could  be  more  sincere."* 

officers  were  English;  their  methods  were  English;  even  the  atti- 
tude which  they  took  towards  the  private  soldiers  of  their  armies 
was  that  which  was  characteristic  of  the  English  officer  of  the  time. 
In  the  south,  the  men  who  led  and  formed  public  opinion  had 
almost  all  been  trained  in  England,  and  were  ingrained  with  English 
sympathies  and  even  prejudices.  In  the  north,  the  acute  general 
intellect  had  long  ago  settled  upon  the  *  common  rights  of  English- 
men '  as  the  bulwark  behind  which  they  could  best  resist  any 
attempt  on  their  liberties.  The  pride  of  the  colonists  in  their  posi- 
tion as  Englishmen  found  a  medium  of  expression  in  enthusiasm 
for  '  the  young  king ';  and  it  would  be  hard  to  imagine  a  more  loyal 
appendage  of  the  crown  than  its  English  colonies  in  North  Amer- 
ica in  1760."  —  Professor  Johnson,  of  Princeton,  in  Encyclopadia 
Britannica,  9th  ed.,  XXIII.  736. 

1  Frothingham,  Rise  of  the  Republic  of  the  United  States,  123. 
The  following  extract  from  the  American  press  of  the  time  fairly 
expresses  the  popular  feeling  :  "  Our  constitution  is  English,  which 
is  another  name  for  free  and  happy,  and  is  without  doubt  the  per- 
fectest  model  of  civil  government  that  has  ever  been  in  the  world." 
—  Independent  Advertiser,  May  29,  1 749. 

-  Letter  to  Charles  Thompson,  1774,  Life  of  Warren,  232. 

3  Works,  X.  282. 

*  Referring  to  the  period  preceding  the  Revolution,  Frothing- 
ham says :  "  A  town  under  the  lead  of  zealous  Whigs  voted  that  the 
union  between  the  colonies  and  Great  Britain  was  not  worth  a  rush; 


32  SOURCES    OF   THE    CONSTITUTION.        chap. 

When  the  contest  came,  it  came  as  a  struggle  over 
ancient  Enghsh  constitutional  principles.  The  drift  had 
long  been  toward  an  opening  of  the  whole  question  of 
mutual  civil  relations,  when  George  III.  forced  the  ques- 
tion to  an  issue  by  attempted  taxation  through  act  of 
Parliament.      England   was   proud   of  America   as   her 

occasionally  a  writer  urged  in  an  essay  in  the  newspapers  that  the 
only  way  to  place  American  liberty  on  a  firm  foundation  was  to 
form  an  independent  nation  ;  but  these  were  the  views  of  extrem- 
ists, and  were  generally  disavowed.  The  great  body  of  the  Whigs 
united  with  the  Tories  in  prizing  this  union  as  of  incalculable  value. 
They  regarded  themselves  as  fellow-subjects  with  Britons.  They 
looked  on  the  people  of  both  countries  as  being  one  in  the  essential 
elements  of  nationality,  political  ideas,  language,  and  the  Christian 
religion;  and  one  in  the  love  of  a  noble  literature  and  precious 
historic  memories.  They  kindled  at  the  sight  of  the  old  flag  and 
at  thoughts  of  the  mother-land  — 

"  'A  land  of  just  and  old  renown, 

Where  freedom  broadens  slowly  down 
From  precedent  to  precedent;  ' 

and  it  was  the  prevailing  sentiment  that  a  recognition  of  coequal 
rights  would  enable  the  people  of  both  countries  to  live  long  under 
the  same  flag.  The  popular  leaders  averred  that  they  did  not  deny 
the  sovereignty,  but  opposed  the  administration.  They  did  not 
ascribe  the  obnoxious  measures  to  the  king  whom  they  revered,  or 
to  the  constitution  which  they  venerated,  or  to  the  nation  which 
they  loved,  but  to  despotic  ministers  and  corrupt  majorities."  —  Rise 
of  the  Republic  of  the  United  States,  294,  295.  In  another  place  he 
well  remarks:  "  I  cannot  but  think  that  much  error  has  crept  into 
American  history  by  not  keeping  in  view  the  difference  between 
opposition  to  the  measures  of  an  administration  and  resistance  to 
the  supreme  power  of  the  empire,  or  to  the  sovereignty."  And 
looking  back  over  the  period  of  colonial  history,  adds,  "  The  immi- 
grants .   .  .  bore  toward  [England]  a  noble  affection."  —  Ibid.  67. 


I.  THE  ANGLO-AMERICA.Y  COLOXIES.  33 

chief  imperial  possession ;  but  she  had  not  yet  learned 
the  secret  of  imperial  administration,  and  her  old  cus- 
toms and  legal  theories,  lingering  from  days  when  she 
had  been  but  an  island  kingdom,  were  inapplicable  to 
the  new  conditions.  By  those  theories,  the  colonists, 
being  British  subjects,  were  as  completely  subordinated 
to  Parliament  as  were  all  other  British  subjects.  True, 
they  had  long  been  permitted  to  regulate  their  internal 
affairs,  and  above  all,  to  vote  their  own  taxes  j  but  Parlia- 
ment had  on  sundry  occasions  asserted  its  right  of  taxa- 
tion, and  held  such  right  to  be  a  necessary  part  of  its 
own  position  as  supreme  legislature.  As  the  legal  theory 
of  Parliament  had  grown  up  under  purely  national  con- 
ditions, this  parliamentary  claim  was  theoretically  cor- 
rect. But  it  did  not  accord  with  the  new  imperial  facts. 
On  the  other  hand,  the  colonists  held  that  the  imperial 
facts  ought  to  be  conceded.  Though  British  subjects, 
they  were  separated  by  wide  seas  from  the  older  land, 
and  were  unable  to  take  active  part  in  its  political  Ufe. 
A  fundamental  principle  of  the  liberties  of  Englishmen 
associated,  as  the  colonists  understood  it,  the  right  of 
representation  with  the  right  of  taxation.  The  principle 
had  been  enunciated  in  their  colonial  legislation  almost 
from  the  beginning  of  colonial  settlement,  and  had  been 
steadily  acted  upon  by  them.  They  were  without  repre- 
sentatives in  Parliament,  and  therefore  Parhament  could 
not,  in  their  view,  rightfully  tax  them.  They  were  un- 
willing to  pay  the  parliamentary  tax,  though,  through 
their   own    representatives    in   the    colonial   legislatures. 


34  SOURCES   OF   THE   CONSTITUTION,     chap.  i. 

they  were  ready  to  vote  more  liberal  supplies  than  those 
proposed  by  Parliament.  Their  plea  was  conservative, 
for  it  desired  that  the  then  existing  state  of  affairs  should 
be  continued.  The  war  that  ensued  was  fought  on  the 
part  of  the  colonists  in  defence  of  what  they  thus  held 
to  be  their  rights  as  men  of  the  English  blood  ;  and 
American  independence  resulted  from  this  constitutional 
struggle. 


CHAPTER   II. 

MAKING   OF   THE   .AMERICAN    CONSTITUTION. 

THE  political  steps  that  led  to  American  indepen- 
dence were  taken  gradually.  At  the  beginning 
of  the  war,  an  intercolonial  or  "  continental  "  Congress 
assembled.  Gatherings,  similar  in  principle,  had  been 
held  on  other  occasions  in  colonial  experience  without 
involving  a  denial  either  of  the  civil  rights  of  individual 
colonies  or  of  the  authority  of  the  mother-country. 
Indeed,  the  colonists,  though  in  no  gentle  mood,  con- 
templated at  first  not  political  separation,  but  only 
defence  against  what  they  claimed  to  be  an  unconstitu- 
tional attack  upon  their  liberties  as  English  subjects  ;  and 
Englishmen  had  many  a  time  in  the  history  of  the 
mother-land  itself  taken  up  arms  for  the  preservation  of 
liberties.-^     But    the   logic    of   events   on   American  soil 

1  "  A  separation  from  Great  Britain  was  vie>ved  with  alarm  and 
trepidation,  and  was  not  onl)'  opposed  by  the  Tory  party  as  a 
whole,  but  also  by  many  Whigs,  who  feared  it  might  lead  to 
anarchy  and  its  attendant  evils."  —  Straus,  Origin  of  Kepiiblican 
Form  of  Gonerntnent  in  the  United  States,  5.  "It  was  long  before 
the  ill  will,  which  the  systematic  disregard  by  Parliament  of  the 
rights  of  the  colonists  had  excited,  triumphed  over  this  feeling. 
Even  in  August  and  September,  1775  —  that  is,  half  a  year  after  the 

35 


36  SOUKCES   OF   THE    CONSTITUTION.        chap. 

slowly  shaped  the  issue,  and  the  Congress  was  forced 
more  and  more  into  acts  involving  the  assumption  of 
sovereign  power,  and  plainly  inconsistent  with  loyalty  to 

battle  of  Lexington  —  so  strong  was  the  Anglo-Saxon  spirit  of  con- 
servatism and  loyalty  among  the  colonists,  that  the  few  extremists 
who  dared  to  speak  of  a  violent  disruption  of  all  bonds,  entailed 
chastisement  upon  themselves  and  were  universally  censured."  — 
Von  Hoist,  Cotisiitutional  History  of  the  United  States,  I.  2.  See  also 
Works  of  John  Adams,  II.  423,  and  American  Archives,  III.  21, 
196,  644,  etc.  "In  May,  1775,  Washington  said:  'If  you  ever 
hear  of  me  joining  in  any  such  measure  [as  separation  from  Great 
Britain],  you  have  my  leave  to  set  me  down  for  everything  wicked.' 
He  had  also  said :  '  It  is  not  the  wish  or  interest  of  the  govern- 
ment [meaning  Massachusetts],  or  of  any  other  upon  this  continent, 
separately  or  collectively,  to  set  up  for  independence.'  And  in  the 
same  year,  Benjamin  Franklin  assured  Chatham,  that  no  one  in 
America  was  in  favour  of  separation.  As  a  matter  of  fact,  the  peo- 
ple of  the  colonies  wanted  a  redress  of  their  grievances  —  they 
were  not  dreaming  of  separation,  of  independence.  .  .  .  We 
must  also  remember  that  the  Revolution  was  begun  and  carried  on 
by  a  noble  minority  —  that  the  majority  were  really  in  favour  of 
Great  Britain."  —  Ingersoll,  North  American  Review,  CLV.  No.  2, 
August,  1892,  p.  183.  It  is  proper  in  this  connection  to  add, 
that  in  the  opening  period  of  the  war,  the  feeling  in  England  in 
favour  of  American  brethren  "  was  intense.  Officers  resigned  their 
commissions  rather  than  serve  in  America;  the  great  cities  took 
open  ground  in  favour  of  the  colonies;  and  some  of  the  English 
middle  classes  were  mourning  the  dead  at  Lexington.  As  the  war 
increased  in  its  intensity,  this  sentiment  necessarily  decreased;  but 
even  while  Parliament  was  supporting  the  war  by  votes  of  more  than 
two  to  one,  the  ministry  was  constantly  hampered  by  the  notorious 
consciousness  that  the  real  heart  of  England  was  not  in  it.  Even 
when  25,000  men  were  voted  at  the  king's  wish,  provision  had  to 
be  made  to  obtain  them  from  Germany."  —  Johnson,  E7icyclopcedia 
Britaniiica,  9th  ed.,  XXIII.  742. 


II.  MAKING    OF   THE    CONSTITUTION.  37 

the  crown.  For  awhile  even  these  were  excused,  on  the 
plea  of  temporary  emergency.  Repeatedly,  and  even 
to  the  last,  did  the  colonies  address  petitions  to  the  king, 
regretting  the  necessity  to  which  they  were  driven,  and 
urging,  in  the  old  words  of  English  usage,  "  redress  of 
grievances  "  for  the  restoration  of  peace  and  unity.  Yet, 
step  by  step,  as  by  a  resistless  destiny,  were  they  swept 
on  toward  the  complete  severance  of  the  old  relations. 
Opinion  changed  with  the  progress  of  the  conflict,  and  a 
popular  demand  for  independence  arose  and  grew  into 
a  controlling  motive.  The  Declaration  of  1776  thus 
resulted,  and  the  war  finally  developed  into  a  struggle  for 
national  existence. 

But  it  is  important  to  bear  in  mind,  that  the  Revo- 
lution disarranged  but  slightly  the  fabric  of  government 
in  the  individual  colonies.  "  It  did  not,"  Webster  has 
affirmed,  "  subvert  the  local  laws  and  local  legislation." 
It  "did  not,"  Chancellor  Kent  has  said,  "involve  in  it 
any  abolition  of  the  common  law."  ^  When  indepen- 
dence came,  and  the  old  colonies  were  turned  into  new 
States,  no  real  political  break  occurred ;  but  constitutions 
embracing  the  essential  principles  of  the  colonial  system 
were  adopted  in  all  the  States  save  two  :  in  Delaware, 
Maryland,  New  Jersey,  Pennsylvania,  North  Carolina, 
and  Virginia  in  1776;  in  New  York  and  Georgia  in 
1777  ;  in  South  Carolina  and  Massachusetts  in  1778;  and 

^  "  British  and  colonial  statutes  made  prior  to  the  Revolution 
continued  also  in  force,  unless  expressly  repealed."  —  The  Critical 
Period,  etc.,  69. 


38  SOURCES   OF   THE    CONSTITUTION.        chap. 

in  New  Hampshire  in  1784.'  Connecticut  and  Rhode 
Island  were  the  exceptions,  and,  as  already  seen,  the 
former  continued  under  its  royal  charter  until  181 8,  and 
the  latter  until  so  late  as  1842,  i.e.  until  within  living 
memory."  As  Professor  Johnson  has  said,  these  "  new 
constitutions  were  the  natural  outgrowths  of  the  colonial 
system,  established  by  charters,  or  by  commissions  to 
royal  or  proprietary  governors ;  and  the  provisions  of 
the  constitutions  were  only  attempts  to  adopt  such 
features  as  had  grown  up  under  the  colonial  systems,  or 
to  cut  out  such  features  as  colonial  or  State  experience 
had  satisfied  the  people  were  dangerous."  ^  And  as  the 
poHtical  usage  of' the  colonies  had  come  originally  from 
Great  Britain,  and  had  been  adapted  and  modified  in 

1  "On  the  loth  of  May,  1776,  the  Continental  Congress  recom- 
mended to  the  several  conventions  and  assemblies  of  the  colonies 
the  establishment  of  independent  governments  '  for  maintenance  of 
internal  peace,  and  the  defence  of  their  lives,  liberties,  and  proper- 
ties.' Before  the  end  of  the  year  in  which  this  recommendation 
was  made,  by  far  the  greater  part  of  the  colonies  had  adopted 
written  constitutions,  in  which  were  restated  in  a  dogmatic  form  all 
of  the  seminal  principles  of  the  English  constitutional  system. 
Thus  ended  that  marvellous  process  of  growth,  through  which  the 
English  colonies  in  America  were  rapidly  developed  into  a  group  of 
independent  commonwealths,  in  which  each  individual  member 
was,  in  its  organic  structure,  a  substantial  reproduction  of  the 
English  kingdom." — Origin  and  Gi-owth  of  English  Constitu- 
tion, 45. 

2  "  It  was  not  possible  that  the  term  American  should  suddenly 
supplant  that  of  Englishman;  but  the  successive  steps  by  which 
the  change  was  accomplished  are  easily  perceptible." — Johnson, 
Encyclopedia  Britatinica,  9th  ed.,  XXIII.  739. 

3  A'Ciu  Princeton  Revie'cu,  September,  1887. 


ir.  MAKING    OF   THE    CONSTITUTION.  39 

colonial  practice,  so  now  that  political  usage  passed  on 
to  the  constitutions  of  the  new  States,  to  be  again 
adapted  and  modified  by  varying  wants  as  such  might 
arise,  but  with  essential  characteristics  still  maintained 
and  steadily  transmitted. 

From  the  nature  of  the  case,  there  could  be  no  settled 
central  government  for  the  newly  forming  nationality 
in  the  early  stages  of  the  contest,  and  before  inde- 
pendence had  been  formally  proclaimed.  In  assuming 
governmental  functions,  the  Continental  Congress  be- 
came essentially  a  revolutionary  body.  Its  existence  was 
simply  the  result  of  an  emergency  created  by  the  need 
of  united  opposition  to  the  home  authorities.  Its  powers 
rested  upon  the  acquiescence  of  the  several  colonies 
and  were  temporary  and  transitional.  And  it  was  re- 
garded, -while  it  lasted,  as  an  advisor)-  assembly  rather 
than  a  government. 

But  when  the  centre  of  colonial  unity  in  the  crown 
was  lost  by  the  Declaration  of  Independence  of  1776, 
a  permanent  union  on  American  soil  became  a  political 
necessity.  And  on  the  very  day  that  saw  the  Declaration 
put  forth,  steps  were  taken  which  led  to  the  adoption, 
in  the  following  year,  of  "Articles  of  Confederation 
and  Perpetual  Union,"  binding  all  the  States  in  a  "firm 
league  of  friendship  with  each  other."  This  earliest 
attempt  at  the  construction  of  a  national  government 
established  what,  as  the  sequel  proved,  was  neither 
national  nor  a  government.  In  reality  it  was  a  mere 
league  of  States,  allied  for  common  aims,  but  with  each 


40  SOURCES   OF  THE    CONSTITUTION.        chap. 

State  reserving  to  itself  almost  all  elements  of  power, 
and  conceding  to  the  common  administration  little  else 
than  responsibilities  without  the  means  of  meeting  them. 
Its  main  feature  was  a  congress  of  one  house,  without 
an  executive,  and  without  any  proper  judiciary.  It 
was,  perhaps,  the  nearest  approach  to  central  authority 
then  attainable  ;  but,  modelled  upon  the  previous  Revo- 
lutionary government,  and  perhaps,  in  part  upon  Dutch 
ideas  borrowed  from  the  Netherlands,  it  was  a  radical 
departure  from  long-established  usage  of  the  English 
race.^  Not  to  trace  its  disastrous  history  in  detail, 
enough  to  say,  that  its  incompetency  for  all  the  purposes 
for  which  it  was  established,  brought  about,  after  ten 
years  of  failure,  its  utter  breakdown,  and  led  to  the 
calling,  by  general  demand,  of  the  Constitutional  Con- 

1  It  is  to  be  doubted  whether  there  was  in  the  Articles  of  Con- 
federation any  intended  following  of  Dutch  institutions,  though 
as  a  matter  of  fact,  several  close  analogies  may  be  drawn.  But 
Campbell  is  entitled  to  speak  on  the  subject.  He  says:  "When 
the  rebellious  American  colonies  framed  a  government  for  them- 
selves during  the  Revolutionary  War,  they  adopted  articles  of 
confederation  in  which  this  feature  of  the  Netherland  republic  was 
incorporated  in  all  its  fulness.  Under  these  articles,  a  congress 
was  established  in  which  each  State,  whatever  the  number  of  its 
representatives,  from  two  to  seven,  had  but  a  single  vote.  This 
Congress  also,  like  the  States  General  of  the  Netherlands  in  the 
early  days,  exercised  all  executive  powers.  Neither  republic  had  a 
president  or  other  executive  officer,  as  did  their  separate  states.  In 
each  the  legislative  body  made  war  and  peace,  appointed  all  offi- 
cers, civil  and  military,  and  exercised  all  the  functions  of  govern- 
ment except  those  purely  judicial."  —  Puritan  in  Holland,  Eng- 
land, and  America,  II.  422. 


11.  MAKING    OF   THE    CONSTITUTION.  41 

vention  which  met  in  Philadelphia  in  1787,  and  framed 
the  present  Constitution  of  the  United  States.' 

The  moment  for  final  constitutional  action  was  well 
chosen.  A  healthy  change  from  the  spirit  of  reaction 
against  all  authority  —  a  spirit  which  manifested  itself  at 
the  close  of  the  war —  had  gradually  come  over  the  young 
nation.  Modern  democracy,  bred  of  the  French  Revo- 
lution, was  not  yet  the  dangerous  force  it  was  so  soon  to 
be  in  America  and  Europe.-  The  leaders  of  opinion  and 
action  had  learned  wisdom  by  their  unsuccessful  experi- 
ment with  constitutional  novelties  under  the  Confedera- 
tion, and  were  inclined  to  distrust  political  theory,  as 
distinct  from  sound  and  practical  political  experience. 
"The  spirit  of  1787  was  an  English  spirit,  and  there- 
fore a  conservative,  tinged,  no  doubt,  by  the  hatred 
of  tyranny  developed  in  the  Revolutionary  struggle, 
tinged  also  by  the  nascent  dishke  of  inequality,  but  in  the 

^  "  The  government  under  the  Articles  of  Confederation  had 
proved  so  weak  that  by  1787  the  American  people  were  left  as 
'  thirteen  distinct  communities  under  no  effective  superintending 
control.'  [Randolph's  letter,  Elliot,  I.  484.]  The  condition  of 
the  country  was  one  in  which  no  indication  of  '  national  disorder, 
poverty,  or  insignificance '  was  wanting.  [Hamilton,  Federalist, 
No.  15.]  To  substitute  for  the  decayed  fabric  of  the  Confederation 
a  central  power  sufficient  to  cope  with  the  existing  evils  was  thus 
the  task  of  the  convention."  — Publications  of  American  Academy 
of  Political  and  Social  Science,  No.  9,  p.  204.  See  also  Curtis, 
History  of  Constitution,  etc. 

-  "  Many  of  the  fifty  delegates  shared  Hamilton's  contempt 
for  a  democracy."  —  Landon,  Constitutional  History  of  the  United 
States,  64. 


42  SOURCES   OF   THE    CONSTITUTION.        chap. 

main  an  English  spirit,  which  desired  to  walk  in  the  old 
paths  of  precedent." ' 

No  attempt  was  made  by  the  Philadelphia  Convention 
to  reconstruct  or  even  to  amend  the  Confederation.  Both 
it,  and  the  peculiarities  it  stood  for,  were  abandoned 
as  by  common  consent.  The  constitution  adopted  was 
something  very  different.  It  was  a  return  to  the  older 
forms,  and  a  recognition  of  the  abiding  facts  of  English 
constitutional  usage  in  America.  It  provided  for  a  per- 
sonal executive,  a  legislature  of  two  branches,  a  judiciary, 
and  —  in  completed  stage  —  a  bill  of  rights  based  upon 
the  historic  liberties.  The  Convention  practically  took 
the  model  of  colonial  government  as  it  had  long  and 
familiarly  existed,  and  as  adapted  in  the  State  govern- 
ments then  freshly  set  up,  and  applied  it  to  the  nation  ; 
introducing  certain  features  made  necessary  by  the  new 
civil  conditions  in  America,  and  others  drawn  directly 
from  the  Constitution  and  contemporaneous  laws  and 
customs  of  Great  Britain. 

"  No  one  familiar  with  the  common  law  of  England," 
remarks  Mr.  Justice  Miller,  "  can  read  the  Constitution 
of  the  United  States  without  observing  the  great  desire 
of  the  Convention  which  framed  that  instrument  to 
make  it  conform  as  far  as  possible  with  that  law.  .  .  . 
To  look  at  the  general  outlines  organizing  the  new  gov- 
ernment into  its  various  branches,  there  is  but  little 
departure  from  that  of  the  English  government.  The 
President,  the  Senate,  and  the  House  of  Representatives 
^  Bryce,  American  Commomuealth,  I.  300. 


II.  MAKING    OF   THE    CONSTITUriON.  43 

correspond  in  essential  features  with  the  King,  Lords, 
and  Commons  of  Great  Britain.  And  although  there 
was  a  necessity  arising  from  the  bringing  together  of 
thirteen  different  States  into  one  general  government, 
with  a  recognition  of  many  of  the  most  important  powers 
of  government  left  in  the  States  themselv^es,  to  vary  in 
some  respects  the  powers  which  were  confided  to  the 
President,  the  Senate,  and  the  House  of  Representatives 
from  those  which  had  by  immemorial  usage  come  to  be 
the  powers  of  the  King,  the  House  of  Lords,  and  the 
House  of  Commons  of  Great  Britain,  yet  the  analogy  is 
very  close."  ^ 

Accustomed  as  we  are  to  the  progress  of  free  institu- 
tions in  civilized  lands  during  the  present  century,  it  is 
difficult  to  realize  that  in  1787,  at  the  time  this  Conven- 
tion met,  the  only  nations  that  actually  possessed  such 
liberties  were  England  and  little  Switzerland.-     Had  the 

^  Miller,  Lectures  on  the  Constitution  of  the  United  States,  486, 
487.  As  the  words  of  a  recent  justice  of  the  Supreme  Court  of  the 
United  States,  these  words  are  exceedingly  significant.  The  decis- 
ions of  the  Supreme  Court  have  recognized  the  principle  of  historic 
continuity  between  English  and  American  law. 

-  No  one  claims  that  the  Constitution  of  the  United  States  is 
indebted  to  Switzerland  for  its  characteristics.  In  the  debates  of 
the  Philadelphia  Convention,  Swiss  institutions  were  mentioned 
only  to  be  criticised.  —  See  EUiot's  Debates,  V.  201,  208,  236. 
Xor  is  the  republic  of  Venice  worth  mentioning  in  this  connection, 
for  it  was  in  a  state  of  dissolution  when  the  Philadelphia  Conven- 
tion met,  and  it  went  to  pieces  in  1 798,  having  in  no  way  influenced 
American  affairs.  Douglas  Campbell  makes  a  claim,  however,  for 
the  Netherlands.  He  says :  "  To  the  fathers  of  the  American  re- 
public, who  carried  through  the  war  of  the  Revolution,  and  after- 


44  SOURCES   OF   THE    CONSTITUTION.        chap. 

citizens  of  the  new  commonwealth  possessed  no  kinship 
with  England,  and  no  inheritance  from  her  political 
system,  they  would  still  have  been  affected  and  swayed, 

vvards  formed  the  American  Constitution,  it  was  a  living  reality,  as 
much  so  as  the  monarchy  of  England."  —  Puritan  in  Holland,  Eng- 
land, and  America,  II.  420.  But  we  may  search  in  vain  to  find 
conscious  copying  from  contemporaneous  Dutch  institutions  in  the 
American  Constitution.  At  that  time,  as  Straus  remarks,  "The  re- 
public of  Holland  was  in  a  very  precarious  state,  so  much  so,  that 
Mr.  Adams  says  of  it,  in  his  '  Defence  of  the  Constitutions  of  Gov- 
ernment,' '  Considering  the  critical  situation  of  it,  prudence  dictates 
to  pass  it  over !  '  "  —  Works  of  John  Adams,  IV.  356,  quoted  in 
Straus,  Origin  of  Republican  For?n  of  Government  in  the  United 
States,  83.  The  fact  is,  that  notwithstanding  the  spirit  of  freedom 
which  illumines  the  history  of  Holland,  republican  principles,  as 
Americans  understand  them,  are  not  to  be  looked  for  in  that  quar- 
ter. Charles  Francis  Adams,  in  a  note  to  the  quoted  passage  from 
the  works  of  John  Adams,  remarks:  "The  government  of  Holland 
grew  out  of  the  immediate  necessities  of  the  heroic  struggle  with  the 
power  of  Spain.  It  never  could  be  presented  as  a  model  for  imita- 
tion by  any  people;  it  was  a  singular  combination  of  corporation 
and  aristocratical  influence  with  a  federal  principle.  "She  author 
had  good  reason  for  avoiding,  at  the  moment  of  publication,  any 
analysis  of  a  system  which  was  then  crumbling,  and  which  has  since 
been  swept  completely  away."  —  p.  357.  For  these  reasons,  refer- 
ence to  Venice  and  Holland  have  been  omitted  above.  It  is  the 
simple  truth,  that  at  the  time  of  the  meeting  of  the  Constitutional 
Convention,  the  only  two  nations  actually  possessing  liberties  were 
England  and  Switzerland.  With  Venice  and  Holland,  liberties  were 
then  little  more  than  a  memory,  and  neither  nation  was  a  fit  model 
for  free  government,     j 

Mr.  Campbell  claims  that  Dutch  usages  have  crept  into  the  Con- 
stitution by  having  been  first  incorporated  into  State  usage,  though 
the  cases  he  specifies  are  few  and  doubtful.  One  such  case,  for 
instance,  is  that  of  the  process  of  voting  in  the  national  Senate  by 
States.    But  when  this  was  proposed  in  the  Philadelphia  Convention, 


II.  MAKING   OF   THE    CONSTITUTION.  45 

almost  of  necessity,  by  the  force  of  her  experience 
and  her  example. 

A   source  of   literary  influence   in   favour  of  English 

in  committee  of  the  whole,  it  was  introduced  by  Roger  Sherman 
of  Connecticut,  with  a  reference  to  England,  not  to  the  Nether- 
lands. 

The  real  attitude  of  the  Philadelphia  Convention  can  be  gathered 
from  a  study  of  the  debates  of  the  members  while  the  Constitu- 
tion was  being  put  together.  So  far  as  Dutch  institutions  are 
concerned,  no  one  can  read  those  debates  without  being  forced 
to  the  conviction  that  Mr.  Campbell  has  been  misled,  and  that 
touching  the  Constitution,  his  book  is  misleading.  There  is  no 
trace  in  the  debates  of  any  tendency  on  the  part  of  the  members  to 
copy  or  even  to  admire  Dutch  institutions.  And  the  few  references 
to  Holland  that  are  to  be  found  are  usually  in  the  form  of  disapproval 
and  warning.  Thus  we  hear  Butler,  when  arguing  in  favour  of  a 
single  executive,  refer  to  "  distracted  Holland "  as  a  warning  of 
what  to  avoid.  —  Elliot's  Debates,  V.  149.  We  hear  Wilson  say: 
"  Switzerland  and  Holland  are  supported  in  their  confederation, 
not  by  its  intrinsic  merit,  but  by  the  incumbent  pressure  of  sur- 
rounding bodies." — Ibid.  I.  430.  We  hear  Madison  say:  "The 
Dutch  are  in  a  most  wretched  situation,  —  weak  in  all  its  parts,  and 
only  supported  by  surrounding  contending  powers."  —  Ibid.  424. 
And  we  listen  to  the  warning  of  Gouverneur  Morris :  "  The  United 
Netherlands  are  at  this  time  torn  in  factions.  With  these  examples 
before  our  eyes,  shall  we  form  establishments  which  must  neces- 
sarily produce  the  same  effects  ?"  —  Ibid.  V.  287;  see,  also.  Ibid. 
154,  219,  342.  The  Federalist.,  addressing  the  people  in  favour  of 
the  new  Constitution,  contrasts  it  with  the  constitution  of  the 
Netherlands.  The  writer  of  No.  XX.  (Madison),  after  summariz- 
ing the  Dutch  system,  adds :  "  What  are  the  characters  which  prac- 
tice has  stamped  upon  it?  Imbecility  in  the  government;  discord 
among  the  provinces;  foreign  influence  and  indignities;  a  pre- 
carious existence  in  peace;  and  peculiar  calamities  from  war.  It 
was  long  ago  remarked  by  Grotius,  that  nothing  but  the  hatred  of 
his  countrymen  to  the  house  of  Austria  kept  them  from  being  ruined 


46  SOURCES  OF   THE    CONSTITUTIOh'.        chap. 

models  existed  in  the  cliief  political  writing  of  the  time, 
Montesquieu's  Esprit  des  Lois.     Though  of  recent  date, 

by  the  vices  of  their  constitution."     He  refers  to  that  constitution  as 
a  "  melancholy  and  monitory  lesson  of  history." 

In  contrast  with  all  this  is  the  frank  avowal  of  Hamilton  in  the 
Convention :  "  I  believe  the  British  government  forms  the  best 
model  the  world  ever  produced."  —  Elliot's  Debates,  I.  421.  And 
again,  Pinckney's  declaration  :  "  Much  has  been  said  [in  the  Con- 
vention] of  the  Constitution  of  Great  Britain.  I  am  free  to  confess 
that  I  believe  it  to  be  the  best  constitution  in  existence."  —  Ibid. 
V.  234.  Both  of  these  men  would  have  liked  to  see  the  British 
Constitution  copied  more  nearly  than  the  differing  conditions  of 
America  permitted.  References  to  English  usages  and  precedents 
are  scattered  thickly  through  the  debates,  as  also  to  the  State  usages 
which  had  grown  up  under  English  influence  and  example.  Butler 
breaks  out  in  complaint  of  this :  "  We  are  always  following  the 
British  Constitution,  when  the  reason  for  it  does  not  apply."  —  Ibid. 
V.  163.  Mason  also  complains :  "  We  all  feel  too  strongly  the  remains 
of  ancient  prejudices  and  view  things  too  much  through  a  British 
medium."  —  Ibid.  V.  387.  Some  in  the  Convention  opposed  following 
English  usages,  —  but  only  to  find  themselves  in  minority.  Citations 
from  the  debates  showing  English  influence  could  easily  be  multi- 
plied. See  Ibid.  I.  394,  399,  409,  415,  422;  V.  141,  150,  151,  152, 
163,  165,  171,  178,  180,  202,  203,  231,  321,  346,  347,  370,  418,  etc. 
Wilson  refers  to  Anglo-colonial  usage  in  connection  with  the  pro- 
posal to  initiate  money  bills  in  the  House  of  Representatives:  "  He 
had  observed  that  this  discrimination  had  been  transcribed  from 
the  British  into  several  American  constitutions." —  Ibid.  V.  282.  And 
Randolph  argued  for  the  same  proposal :  "  It  would  make  the  plan 
[of  the  Constitution]  more  acceptable  to  the  people,  because  they 
will  consider  the  Senate  as  the  more  aristocratic  body,  and  will  ex- 
pect that  the  usual  guards  will  be  provided  according  to  the  exam- 
ple of  Great  Britain."  —  Ibid.  V.  410.  Gouverneur  Morris,  objecting 
to  the  extent  to  which  the  arguments  from  English  usage  were  car- 
ried, exclaimed:  "We  should  either  take  the  British  Constitution 
altogether,  or  make  one  for  ourselves."  —  Ibid.  V.  284. 


II.  MAKING    OF   THE    CONSTITUTION.  47 

this  work  had  reached  the  position  of  a  recognized 
authority  on  both  sides  of  the  Atlantic ;  and  it  was 
accepted  by  the  leaders  of  the  Convention  as  in  many 
ways  a  guide  for  their  deliberations.  This  political  writer, 
impressed  by  the  despotisms  of  continental  Europe,  had 
taken  England  as  an  ideal,  in  his  philosophical  disquisi- 
tion on  free  institutions.  And  as  Madison  expresses  it  in 
the  Federalist,  "  The  British  Constitution  was  to  Montes- 
quieu what  Homer  has  been  to  the  didactic  writers  of 
epic  poetry.  As  the  latter  have  considered  the  works  of 
the  immortal  bard  the  perfect  model  from  which  the 
principles  and  rules  of  the  epic  art  were  to  be  drawn, 
and  by  which  all  similar  works  were  to  be  judged,  so  the 
great  political  critic  appears  to  have  viewed  the  Consti- 
tution of  England  as  the  standard,  or,  to  use  his  own 
expression,  as  the  mirror  of  political  liberty  ;  and  to  have 
delivered  in  the  form  of  elementary  tn:ths,  the  several 
characteristic  principles  of  that  system."  ^  Notably  !Mon- 
tesquieu's  analysis  of  government  in  the  threefold  divis- 
ion of  executive,  legislative,  and  judicial,  which  gained 
world-wide  acceptance  as  a  political  doctrine,  was  based 
upon  the  fact  of  the  nearly  complete  separation  of  these 
functions  in  the  British  system.  And  he  drew  from  it 
the  special  maxim  :  "There  is  no  liberty  if  the  judicial 
power  be  not  separated  from  the  legislative  and  the 
executive,"-  —  a  maxim  that  has  powerfully  affected  the 
course  of  American  politics,  though  abandoned  by  a 
later  political  philosophy. 

1  Federalist,  No.  47.        -  r Esprit  des  Lois,  C.  VI.,  LIV.,  XI. 


48  SOURCES   OF  THE    CONSTITUTION.         chap. 

The  law  commentaries  of  Sir  William  Blackstone 
also  influenced  the  Convention  in  the  same  direction. 
"  Whenever  the  power  of  making  and  that  of  enforcing 
the  laws  are  united  together,  there  can  be  no  public 
liberty,"  is  a  statement  in  which  Blackstone  evidently 
echoes  Montesquieu.^  And  his  own  analysis  of  the 
English  Constitution  accentuates  the  principle  of  an 
approximately  threefold  division.  As  being  the  highest 
authority  on  the  laws  of  England,  his  book  was  appar- 
ently followed  by  the  makers  of  the  Constitution  in  all 
branches  of  their  work,  and  with  a  fidelity  which  has 
even  called  forth  criticism  from  modern  English  writers. 

But  American  political  experience  was,  after  all,  the 
principal  factor  on  which  the  Philadelphia  Convention 
relied  in  its  constructive  task.  The  idea  of  a  sharply 
defined  threefold  division  of  government  fell  in  with 
this  experience ;  for  in  all  the  colonies  such  a  division 
had  long  existed,  the  separation  of  functions  being 
more  evident  and  extending  further  than  in  the  mother- 
country.  The  colonial  governor,  though  associated  with 
the  legislature,  was  independent  of  its  control,  and  de- 
rived his  powers  from  the  central  executive,  the  crown  ; 
which,  also,  as  a  matter  of  course,  was  beyond  the  reach 
of  the  local  legislature.  This  latter  body  was  never  a 
supreme  authority  such  as  the  Parliament  in  England, 
but  always  a  separate  branch  of  government  under  defi- 
nite limitations.  And  the  judiciary  had  its  essentially 
distinct  field  of  operations.  Such  threefold  division  was 
1  Blackstone,  Book  I.,  Chap.  III. 


II.  MAKING    OF   THE    CONSTITUTION.  49 

continued  in  the  governments  of  the  newly  formed  States. 
And  the  influence  of  this  colonial  and  State  usage  upon 
the  delegates  was  direct  and  powerful  by  reason  of  their 
lifelong  contact  with  these  governments,  and  also  and  nota- 
bly because  of  the  active  part  most  of  them  had  recently 
taken  in  the  process  of  State  constitution-making,  —  a  task 
well  fitting  them  for  a  national  labour  on  similar  lines.^ 

^  Speaking  of  the  division  of  government,  Madison  has  said : 
"  On  the  sHghtest  view  of  the  British  Constitution  we  must  perceive 
that  the  legislative,  executive,  and  judiciary  departments  are  by  no 
means  totally  separate  and  distinct  from  each  other."  —  Federalist, 
No.  46.  Referring  to  the  constitutions  of  the  States  he  adds :  "  If 
we  look  into  the  constitutions  of  the  several  States,  we  find  that, 
notwithstanding  the  emphatical  and,  in  some  instances,  the  unquali- 
fied terms  in  which  the  axiom  has  been  laid  down,  there  is  not  a 
single  instance  in  which  the  several  departments  of  power  have 
been  kept  absolutely  separate  and  distinct."  —  Ibid.  Taylor  accu- 
rately states  the  case :  "  The  English  maxim  as  to  the  division  of 
powers  was  followed  in  the  structure  of  the  State  constitutions  only 
in  the  limited  and  qualified  sense  in  which  it  was  understood  in 
England.  .  .  .  The  '  literary  theory '  of  the  English  Constitution 
misled  neither  Madison  nor  Hamilton." — Origin  and  Growth  of 
the  English  Constitution,  46,  n.  i .  "  The  maxim  as  to  the  division 
of  powers  was  accepted  in  the  qualified  sense  in  which  it  was  un- 
derstood by  Montesquieu,  who  accepted  it  in  the  form  in  which  it 
existed  in  the  English  system."  —  Ibid.  68,  n.  3.  Referring  to  this 
maxim  of  Montesquieu,  Madison  remarks  :  "  He  did  not  mean  that 
these  departments  ought  to  have  no  partial  agency  in  or  no  control 
over  the  acts  of  each  other."  —  Federalist,  No.  46.  See  also  Paul 
Janet's  Histoire  de  la  Science  Politique.  In  the  Constitutional  Con- 
vention at  Philadelphia,  "  after  the  federal  head  had  been  split  into 
the  three  departments,  legislative,  executive,  and  judicial,  in  the 
qualified  sense  in  which  such  division  was  understood  in  the  State 
constitutions,  each  department  was  organized  in  accordance  with 
English  ideas,  in  so  far  as  could  be  applied  to  a  '  composite  state ' 


50  SOURCES   OF   THE    CONSTITUTION.        chap. 

But  American  experience,  let  it  be  remembered,  was 
not  limited  to  the  colonies  and  States.  There  had  been 
contact  all  along  with  the  English  Constitution  itself  as 
the  supreme  constitution  of  the  united  British  empire. 
And  the  Englishmen  of  the  colonies  had  sympathized 
with  and  been  profoundly  affected  by  its  vicissitudes. 
The  fall  of  Charles  I.,  the  accession  of  Cromwell,  the 
restoration  of  Charles  II.,  the  arbitrary  reign  of  James  II., 
the  Revolution  of  1688,  and  the  coming  in  of  the  House 
of  Hanover,  were  constitutional  events,  felt  by  them  quite 
as  really  as,  if  less  directly  than,  by  their  brethren  at  home, 
—  events  which  left  permanent  results  upon  even  their 
local  institutions.  The  Constitution  of  the  mother-land 
had  been  more  than  an  ideal  model ;  it  had  been  a  vital 
factor  in  the  life  of  the  American  people.  And  there  was 
a  controlling  force  in  the  fact  that  until  1776  they  had 
thus  continued  in  unbroken  touch  with  the  ancient  polit- 
ical fabric,  in  addition  to  having  lived  under  an  adapta- 
tion of  it  in  their  several  provinces.  The  delegates  at 
the  Philadelphia  Convention,  in  taking  the  State  constitu- 
tions as  a  model  for  the  new  Constitution  of  the  United 
States,  took  also  the  English  Constitution  itself,  consid- 
ered not  merely  as  a  theory  or  an  ideal,  but  as  a  contem- 
poraneous fact,  and  as  an  essential  element  in  American 
political  experience. 

Yet  the  elements  of  the  Enghsh  Constitution  which 
were  thus  adopted  into  the  Constitution  of  the  United 

at  once  federal  and  republican."  —  Taylor,  Origin  and  Growth  of 
the  English  Constitution,  68. 


II.  MAKING    OF   THE    COXSTITUTIOiV.  51 

States  differ  in  many  respects  from  those  existing  in 
the  England  of  to-day.  "  The  comparison  is  the  more 
difficult,"  lucidly  remarks  an  American  law  professor,  "be- 
cause the  English  Constitution  is  not  a  constant  quantitj'. 
Like  the  glacier,  which,  though  seeming  fixed  and  rigid, 
is  yet  plastic  and  suffers  a  continual  change,  it  has 
varied  in  each  century,  and  sometimes  in  each  succes- 
sive generation."^  And  Sir  Henry  Maine  touches  the 
same  point :  "  The  Constitution  of  the  United  States  is 
coloured  throughout  by  political  ideas  of  British  origin, 
and  it  is  in  reality  a  version  of  the  British  Constitution 
as  it  must  have  presented  itself  to  an  observer  in  the 
second  half  of  the  last  century."-  And  again:  '-'The 
Constitution  of  the  United  States  is  a  modified  version 
of  the  British  Constitution,  but  the  British  Constitution 
which  served  as  its  original  was  that  which  was  in  ex- 
istence between  1760  and  1787.  The  modifications 
introduced  were  those,  and  those  only,  which  were 
suggested  by  the  new  circumstances  of  the  American 
colonies,  now  become  independent."^ 

It  is  certainly  strange  that,  until  very  recently,  no 
general  reahzation  of  this  historical  truth  of  the 
derivation  of  the  American  Constitution  from  English 
originals  has  appeared  to  exist  either  in  the  mother 
or  the   daughter  land.     Facts   bearing   on   the    subject 

1  J.  I.  Clark  Hare,  Azotes  of  a   Course  of  Lectures  on  American 
Constitutional  Law,  Philadelphia,  1885,  P-  ^^' 
^Popular  Gorjernment,  249,  253. 
*  Ibid.  253. 


52  SOURCES   OF   THE    CONSTITUTION.        chap. 

have  been  familiar  to  most  English-speaking  persons. 
But  from  the  first  a  singular  silence  has  prevailed  on 
the  whole  question  of  sources,  —  a  silence  which  is  so 
noteworthy  for  the  period  of  the  adoption  and  ratifica- 
tion of  the  new  Constitution  by  the  States,  as  to  seem 
to  require  explanation.  Whatever  may  be  said  of  later 
times,  how  was  it  possible  that  so  little  was  spoken  or 
published  regarding  English  sources  at  the  eventful 
epoch  when  the  question  of  the  new  central  govern- 
ment profoundly  agitated  the  people?  How  can  the 
comparative  ignoring  of  the  matter  by  all  parties  dur- 
ing the  very  season  when  turbulent  debate  was  con- 
ducted upon  the  merits  and  demerits  of  the  freshly 
constructed  document,  be  accounted  for? 

Sir  Henry  Maine  refers  to  this  remarkable  silence, 
especially  as  affecting  the  pages  of  the  Federalist,  and 
ventures  an  explanation.  "There  is  one  fountain  of 
political  experience  upon  which  the  Federalist  seldom 
draws,  and  that  is  the  political  experience  of  Great 
Britain.  The  scantiness  of  these  references  is  at  first 
sight  inexplicable.  The  writers  must  have  understood 
Great  Britain  better  than  any  other  country  except 
their  own.  They  had  been  British  subjects  during  most 
of  their  lives.  They  had  scarcely  yet  ceased  to  breathe 
the  atmosphere  of  the  British  .Parliament,  and  to  draw 
strength  from  its  characteristic  disturbances.  .  .  .  On 
the  whole  it  cannot  but  be  suspected  that  the  fewness 
of  the  appeals  to  British  historical  examples  had  its 
cause  in  their  unpopularity.     The    object   of  Madison, 


11.  MAKING    OF   THE    CONSTITUTION.  53 

Hamilton,  and  Jay  was  to  persuade  their  countrymen  ; 
and  the  appeal  to  British  experience  would  only  have 
provoked  prejudice  and  repulsion.'" 

The  reaction  of  popular  sentiment,  which  turned  the 
old  love  of  England  into  a  new  feeling  of  hostility,  cer- 
tainly goes  far  to  account  for  this  contemporaneous 
silence.  It  is  true  that  the  Americans  had  but  recently 
emerged  from  British  rule,  but  that  rule  had  been  put 
aside  in  consequence  of  a  hard-fought  war,  and  the  pas- 
sions of  war  were  still  too  fresh  to  permit  the  use  of  argu- 
ments based  upon  British  experience  in  favour  of  any 
document  commended  for  adoption  by  the  people. 

Yet  the  noted  author  just  quoted  but  partly  indicates 
the  reason  for  the  phenomenon  in  question.  He  appears 
to  be  thinking  of  the  public  utterances  of  the  leaders, 
and  to  have  in  mind  only  the  English  Constitution  of 
that  period.  And  a  distinction  is  important  to  remember, 
—  that  the  American  Constitution,  though  reflecting  a 
contemporaneous  stage,  was  not  a  mere  imitation  of  the 
Constitution  of  the  mother-land,  but  an  historical  devel- 
opment from  it.  Its  similarity  to  its  prototype  resulted 
not  from  any  copying  process  first  undertaken  in  the 
Convention  at  Philadelphia.  Rather  was  it  a  reaffirma- 
tion of  principles  already  American  by  hereditary  usage 
or  long-established  custom.  The  earliest  attempt  at  a 
national  constitution,  that  of  the  Confederation,  had  been 
a  failure  precisely  as  to  the  points  in  which  it  departed 
from  these  principles ;  and  the  present  Constitution  was 

^  Popular  Government,  206,  207. 


54  SOUJiCES   OF   THE    CONSTITUTION.        chap. 

a  return  to  a  system  from  which  the  colonies  themselves 
had  never  departed.^  Hamilton,  Madison,  Jay,  and  others 
had  no  need  to  argue  for  the  adoption  of  English  con- 
stitutional usage  as  such,  to  a  people  who  were  already 
accustomed  to  it  as  their  own.  Little  was  said,  for 
little  needed  to  be  said.  The  people  thought  and  acted 
from  long-acquired  habit.  Even  the  members  of  the 
Convention,  though  consciously  taking  much  from  the 
old  system,  were  doubtless  incompletely  aware  of  the  ex- 
tent to  which  they  themselves  were  influenced  by  their 
training  under  such  institutions.^    The  establishment  of  a 

1  "  No  unbiassed  student  of  political  history  is  disposed  to  ignore 
the  great  merits  which  are  attributed  to  the  English  Constitution, 
due  to  the  fact  that  it  is  the  result  of  growth  and  not  of  manu- 
facture. The  history  of  fiat-constitutions  .  .  .  illustrates  the 
pitiful  failures  of  organic  law  made  to  order;  and  the  unhappy 
experiences  of  the  many  South  American  republics  whose  constitu- 
tions have  been  patterned  after  that  of  the  United  States,  show  that  a 
successful  form  of  government  cannot  be  introduced  into  a  country 
by  mere  importation,  especially  if  it  find  no  support  in  the  political 
habits  and  character  of  the  people."  —  Annals  of  the  American 
Academy  of  Political  and  Social  Science,  April,  1891,  p.  529. 

2  "An  assembly  could  hardly  have  been  convened  in  the  United 
Kingdom  more  English  as  to  race  and  political  training  than  that 
made  up  of  the  fifty-three  delegates  who  composed  the  Federal 
Convention.  The  Virginia  delegation  was  simply  a  brilliant  group 
of  English  country  gentlemen  who  had  been  reared  on  the  right 
side  of  the  Atlantic.  Alexander  Hamilton  and  Robert  Morris  were 
born  English  subjects;  the  father  of  Franklin  was  an  English  emi- 
grant from  Northamptonshire;  Charles  Cotesworth  Pinckney  had 
been  educated  at  Oxford  and  the  Middle  Temple;  Rutledge  had 
studied  law  at  the  Temple;  and  James  \Yilson,  the  most  far-sighted 
man  perhaps  in  the  whole  Convention,  was  born  near  St.  Andrew's, 


n.  MAKING  OF   THE    COXSTITUTION.  55 

permanent  constitution  of  any  other  than  an  English 
character  would  probably  have  been  an  impossibility. 
This  is  quite  sufficient  to  account  for  the  silence  as  to 
sources  at  the  time  and  ever  since.  Americans  then 
regarded  and  still  regard  their  constitutional  principles 
as  essentially  their  own,  —  English  constitutional  princi- 
ples ha\-ing  become  American  constitutional  principles.^ 

By  a  process  of  adoption  and  adaptation,  rather  than 
of  new  creation,  the  Convention  at  Philadelphia  gave 
the  highest  eWdence  of  its  sagacity.  "The  American 
Constitution,"  says  Mr.  Brjce,  "  is  no  exception  to  the 
rule  that  ever}'thing  which  has  power  to  win  the  obedi- 
ence and  respect  of  men  must  have  its  roots  deep  in 
the  past,  and  that  the  more  slowly  every  institution 
has  grown,  so  much  the  more  enduring  is  it  likely  to 
prove.     There  is  little  in  that  Constitution  that  is  ab- 

Scotland.  As  to  political  training,  they  had  all  been  reared  under 
the  English  system  of  local  self-government  which  had  grown  up 
alongside  of  the  English  customarj'  law  in  the  several  States  which 
they  represented.  Those  States  they  had  helped  to  transform  from 
English  provinces  into  independent  commonwealths,  whose  consti- 
tutions were  substantial  reproductions  of  that  of  the  English  king- 
dom."—  Taylor,  Origin  and  Grozvtk  of  the  English  Constitution, 
62. 

1  "  Although  the  framers  of  our  Constitution  were  without  any 
grasp  of  the  modern  conception  of  the  historical  continuitj'  of  the 
race,  they  revered  the  ancient  constitutional  traditions  of  England. 
And  thus  it  came  to  pass  that  Magna  Charta,  the  Acts  of  the  Long 
Parliament,  the  Declaration  of  Independence,  and  the  Constitution 
of  1787  constitute  the  record  of  an  evolution."  —  W.  T.  Brantly's 
essay,  "  Formation  of  the  Federal  Constitution,"  Southern  Law 
Review,  August,  1880,  VI.  352. 


56  SOURCES   OF   THE   CONSTITUTION.         chap. 

solutely  new.  There  is  much  that  is  as  old  as  Magna 
Charta.'"  The  delegates  of  the  Convention  "  had  nei- 
ther the  rashness  nor  the  capacity  for  constructing  a 
constitution  a  priori.  There  is  wonderfully  little  gen- 
uine inventiveness  in  the  world,  and  perhaps  least  of 
all  has  been  shown  in  the  sphere  of  political  institutions. 
These  men,  practical  politicians,  who  knew  how  infinitely 
difficult  a  business  government  is,  desired  no  bold  ex- 
periments. They  preferred,  so  far  as  circumstances 
permitted,  to  walk  in  the  old  paths,  to  follow  methods 
which  experience  had  tested."''  Professor  Johnson 
speaks  in  the  same  strain  :  "  If  the  briUiant  success  of 
the  American  Constitution  proves  anything,  it  does  not 
prove  that  a  viable  constitution  can  ever  be  struck 
off  at  a  given  time  by  the  brain  and  purpose  of  man. 
Man  may  be  a  political  animal,  but  in  no  such  sense 
as  this.  .  .  .  To  accuse  the  members  of  having  deliber- 
ately hazarded  the  destinies  of  their  country  upon  the 
outcome  of  an  entirely  new  and  untried  instrument  of 
government,  would  be  an  injustice  against  which  they  would 
have  been  the  first  to  protest ;  and  yet  the  intensity  of 

1  AtJierican  Commonwealth,  I.  26. 

2  Ibid.  I.  31.  "The  American  Constitution  of  17S7  was  a  faith- 
ful copy,  so  far  as  it  was  possible  to  make  one  out  of  the  materials 
at  hand,  of  the  contemporary  Constitution  of  England.  .  .  .  Allow- 
ing for  the  more  democratic  character  of  the  constituencies,  the 
organization  of  the  supreme  power  in  the  United  States  is  nearer 
the  English  type  of  the  last  century — is  less  modern,  in  fact  —  than 
is  the  English  Constitution  of  the  present  day."  —  Encyclopczdia 
Britannica,  9th  ed.,  VI.  310,  "Constitution." 


II.  MAKIXG    OF  THE   COXSTITUTIOX.  57 

posterity's  admiration  for  their  success  is  continually 
tempting  new  writers  into  what  is  in  reality  just  such 
an  accusation."'  And  Mr.  James  Russell  Lowell  has 
observed,  with  his  usual  grace  :  "  They  had  a  profound 
disbelief  in  theory,  and  knew  better  than  to  commit 
the  folly  of  breaking  with  the  past.  They  were  not 
seduced  by  the  French  fallacy,  that  a  new  system  of 
government  could  be  ordered  like  a  new  suit  of  clothes. 
They  would  as  soon  have  thought  of  ordering  a  suit 
of  flesh  and  skin.  It  is  only  on  the  roaring  loom  of 
time  that  the  stuff  is  woven  for  such  a  vesture  of  thought 
and  expression  as  they  were  meditating.'"^ 

^  Nnv  Princeton  Revieiu,  September,  1S87. 

2  Address  on  Democracy,  October  6,  1884.  "  \Miat  gives  colour  to 
the  notion,  that  the  American  constitutions,  both  State  and  P'ederal, 
are  the  voluntary"  creation  of  man,  is  the  fact  that  they  are  written 
(so-called),  and  that  these  writings  have  been  formulated,  enacted, 
and  promulgated  by  representative  conventions.  This  opinion  has 
been  so  prevalent  that  the  national  habit  is  to  look  upon  the  mem- 
bers of  the  Convention  of  1787  as  demi-gods,  giant  heroes,  far 
surpassing  the  foremost  men  of  to-day,  while  the  Constitution  itself 
has  been  placed  upon  a  pedestal  and  worshipped  as  a  popular 
idol.  .  .  .  But  by  making  a  popular  idol  of  it  we  are  apt  to  lose 
the  very  benefits  which  its  excellencies  insure.  It  is  the  complete 
harmony  of  its  principles  with  the  political  evolution  of  the  nation 
which  justly  challenges  our  admiration,  and  not  the  political  acu- 
men of  the  convention  which  promulgated  it.  Instead,  therefore, 
of  being  the  voluntary  creation  of  the  American  people  in  the 
eighteenth  centur)',  the  Federal  and  State  constitutions  of  the 
United  States  are  but  natural  and  sequential  developments  of 
the  British  Constitution,  modified  as  to  detail  and  as  to  a  few  funda- 
mental principles  by  the  new  environment.  This  claim  is  easily 
substantiated  by  the  most  superficial  comparison  of  the  British  and 


58  SOURCES   OF  THE    CONSTITUTION,      chap.  ii. 

American  constitutions.  .  .  .  And  a  closer  study  of  the  two  systems 
reveals  the  fact  that  every  principle  brought  into  play  by  the  Amer- 
ican constitutions,  that  has  endured  and  proved  effectual  in  the 
attainment  of  the  ends  aimed  at,  was  either  of  English  origin  or 
was  the  direct  product  of  the  social  forces  that  were  at  play  in 
American  life."  —  C.  D.  Tiedman,  Umvritten  Constitution  of  the 
United  States,  20,  25. 


CHAPTER   III. 


LEGISLATIVE   ORGANISM. 


THE  Gerrnania  of  Tacitus  describes  the  ancient 
Teutonic  assembly  as  twofold  in  operation,  with 
a  conservative  element  in  the  conference  of  chiefs  and 
a  popular  element  in  the  gathering  of  the  armed  host 
of  freemen.  "  About  minor  matters,"  he  tells  us,  "  the 
chiefs  deliberate ;  about  the  more  important,  the  whole 
tribe.  Yet  even  when  the  formal  decision  rests  with  the 
people,  the  affair  is  always  thoroughly  discussed  by 
the  chiefs.  They  assemble,  except  in  the  case  of  sudden 
emergency,  on  certain  fixed  days,  either  at  new  or  at 
full  moon,  for  this  they  consider  the  most  auspicious 
season  for  the  transaction  of  business.  .  .  .  Their  free- 
dom has  this  disadvantage,  that  they  do  not  meet  simul- 
taneously, or  as  they  are  bidden,  but  two  or  three  days 
are  wasted  in  the  delays  of  assembling.  When  the 
multitude  think  proper,  they  sit  down  armed.  Silence 
is  proclaimed  by  the  priests,  who  have  on  these  occa- 
sions the  right  of  keeping  order.  Then  the  king  or  the 
chief,  according  to  age,  birth,  distinction  in  war,  or 
eloquence,  is  heard,  more  because  he  has  influence  to 
persuade,  than  because  he  has  power  to  command.     If 

59 


60  SOURCES   OF   THE    CONSTITUTION.        chap. 

his  sentiments  displease  them,  they  reject  them  with 
murmurs ;  if  they  are  satisfied,  they  brandish  their 
spears.  The  most  complimentary  form  of  assent  is  to 
express  approbation  with  their  weapons."  ^ 

Such  was  the  earhest  form  of  our  racial  legislature  of 
which  there  is  record.  And  in  it  were  the  germs  of 
all  that  came  after  it.  The  essential  features  of  Saxon 
markmoot,  shiremoot,  folkmoot  and  Witenagemot,  of 
Norman  Great  Council,  of  Parliament,  of  colonial  and 
State  legislature,  and  of  the  American  Congress,  were 
historically  derived  from  this  ancient  and  original  Teu- 
tonic source.^ 

1  Ag7-icola  and  Germania  of  Tacitus,  translated  by  A.  J.  Church 
and  William  J.  Brodribb,  95,  96. 

'^  The  purest  Teutonic  institutions  are  to  be  looked  for  in  Eng- 
land, rather  than  on  the  continent  of  Europe.  "  While  the  Germans 
of  Gaul,  Italy,  and  Spain  became  Romans,  the  Saxons  retained  their 
language,  their  genius,  and  manners,  and  created  in  Britain  a 
Germany  outside  of  Germany."  —  'YzIvciq,  History  of  English  Litera- 
ture,  I.  50.  Commenting  upon  this,  Hannis  Taylor  remarks : 
"  By  this  statement  the  difference  between  Teutonic  conquest  and 
settlement  in  Britain,  and  Teutonic  conquest  and  settlement 
upon  the  Continent  is  clearly  defined.  In  the  one  case  the  invaders 
were  absorbed  in  the  mass  of  the  conquered;  Teutonic  life  simply 
became  an  element  in  the  older  Roman  society.  In  the  other,  the 
invaders  absolutely  annihilated,  within  the  limits  which  they  made 
their  own  while  they  were  still  heathens,  every  vestige  of  the  exist- 
ing civilization,  and  established  in  its  stead  their  whole  scheme  of 
barbaric  life.  The  Teutonic  polity  thus  established  in  Britain  in  its 
purity  has  been  able  to  survive  and  to  preserve  not  only  its  iden- 
tity, but  its  primitive  instinct,  in  all  the  vicissitudes  of  change  and 
of  growth  through  which  it  has  passed.  The  invaders  who  thus 
established  a  new  nationality  in  Britain  were  of  the  purest  Teutonic 


III.  LEGISLATIVE    ORGANISM.  61 

"This  immortal  constitution,"  observes  Mr.  Freeman, 
in  commenting  upon  the  passage,  "  was  the  constitution 
of  our  forefathers  in  their  old  land  of  northern  Germany, 
before  they  made  their  way  to  the  isle  of  Britain.  And 
that  constitution,  in  all  the  essential  points,  they  brought 
with  them  into  their  new  homes ;  and  there  transplanted 
to  a  new  soil,  it  grew  and  flourished,  and  brought  forth 
fruit  rich  and  more  lasting  than  it  brought  forth  in  the 
land  of  its  earlier  birth.  On  the  Teutonic  mainland 
the  old  Teutonic  freedom,  with  its  free  assemblies, 
national  and  local,  gradually  died  out  before  the  en- 
croachments of  a  brood  of  petty  princes.  In  the 
Teutonic  island  it  has  changed  its  form  from  age  to  age, 
it  has  lived  through  many  storms,  and  it  has  withstood 
the  attacks  of  many  enemies,  but  it  has  never  utterly 
died  out.  The  continued  national  life  of  the  people,  not- 
withstanding foreign  conquests  and  national  rev'olutions, 
has  remained  unbroken  for  fourteen  hundred  years.     At 

type,  and  all  spoke  dialects  of  the  Low  German.  From  the  earliest 
period  in  their  insular  history,  these  settlers  knew  themselves  as 
'the  English  kin';  and  out  of  their  union  has  arisen  the  English 
nation,  which,  through  all  the  vicissitudes  of  internal  growth  and 
external  influence,  has  preserved  both  its  national  character  and 
its  identity.  In  the  course  of  its  history  it  has  received  many 
infusions,  it  is  true,  —  for  the  most  part,  however,  from  other 
branches  of  the  Teutonic  stock.  No  nation  can  claim  absolute 
purity  of  blood;  foreign  elements  are  present  in  the  veins  of  every 
people.  But  the  national  character  is  never  lost  so  long  as  the 
paternal  element  is  strong  enough  to  absorb  all  other  elements,  and 
to  impress  upon  the  nation,  as  a  whole,  its  own  image  and  in- 
stincts."—  Origin  and  Growfh  of  the  English  Constitution,  86, 


62  SOURCES   OF   THE    CONSTITUTION.        chap. 

no  moment  has  the  tie  between  the  present  and  the  past 
been  wholly  rent  asunder ;  at  no  moment  have  English- 
men sat  down  to  put  together  a  wholly  new  constitution 
in  obedience  to  some  dazzling  theory.  Each  step  in 
the  growth  has  been  the  natural  consequence  of  some 
earlier  step  ;  each  change  in  the  law  and  constitution 
has  been  not  the  bringing  in  of  anything  wholly  new, 
but  the  development  and  improvement  of  something 
that  was  already  old.  The  progress  has  in  some  ages 
been  faster,  in  others  slower ;  at  moments  it  has 
seemed  to  stand  still,  or  even  to  go  back ;  but  the 
great  march  of  political  development  has  never  wholly 
stopped  :  it  has  never  been  permanently  checked,  since 
the  day  when  the  coming  of  the  Teutonic  conquerors 
first  began  to  change  Britain  into  England."^ 

The  earliest  legislative  institutions  of  England  after 
the  coming  of  the  Saxons  bear  internal  evidence  of 
Teutonic  origin.  Every  freeman  had,  as  in  the  ancient 
days  of  the  race,  a  rightful  place  in  the  deliberative 
councils  of  his  tribe  or  state.  In  the  assemblies  of  the 
mark,  the  hundred,  and  the  shire  of  the  first  kingdoms 
established  there  appears  to  have  been  no  essential 
departure  from  ancient  models.  But  as  the  petty  king- 
doms were  slowly  aggregated  into  the  great  heptarchic 
kingdoms,  there  grew  up  for  each  enlarged  nationality 
a  Witenagemot,  or  council  of  the  chiefs  —  the  witan  or 
wise  —  and  the  folkmoot  or  old  assembly  of  the  freemen 
sank  into  a  shiremoot,  of  which  the  new  kingdom  might 

'  Grozvth  of  the  English  Const  ittiiion,  18-20. 


III.  LEGISLATIVE    ORGANISM.  63 

have  many.     Possibly  the  shire  represented  the  earher 
petty  state,  and  came  thus  to  retain  the  folkmoot.^     As 

1  "  If  each  shire  represented  a  complete  kingdom,  the  shiremoot 
would  give  a  complete  representative  system  existing  in  each  king- 
dom. But  as  the  small  kingdoms  coalesced  or  were  united  by  con- 
quest, it  does  not  seem  to  have  been  thought  necessary  to  extend 
the  system;  the  council  of  the  aggregated  state  is  not  a  folkmoot, 
but  a  witenagemot.  In  those  early  kingdoms,  which  were  identical 
with  the  later  shires,  Kent,  for  instance,  it  might  be  expected 
that  we  should  find  two  central  councils,  the  folkmoot  or  council 
of  the  people  of  Kent,  and  the  witenagemot  or  council  of  the 
chiefs,  answering  to  the  greater  and  narrower  assemblies  of  the 
plebs  and  the  principes  in  the  Geri?iania.  It  is  by  no  means  im- 
probable that  such  was  the  case;  but  as  our  knowledge  on  the 
subject  is  derived  from  the  charters  attested  by  these  assemblies, 
or  issued  with  their  consent,  and  as  the  consent  of  the  witan  only 
was  necessary  for  the  transfers  of  land,  we  have  not  the  documentary 
evidence  that  would  suffice  for  proof.  We  have  many  charters 
issued  in  witenagemots  under  the  kings  of  Kent;  but  the  only 
document  issued  by  a  folkmoot  of  Kent  belongs  to  a  date  when 
it  had  long  been  without  a  king.  The  customs,  however,  of  the 
folkmoot  are  so  common  and  so  ancient,  that  they  afford  a  strong 
presumption  of  their  universality;  so  that  Kent  and  Sussex,  and 
perhaps  Essex  and  East  Anglia,  may  be  fairly  supposed  to  have  had 
the  two  regular  assemblies  in  primitive  simplicity  as  long  as  they 
continued  independent.  With  regard  to  Wessex  and  Mercia,  which 
were  aggregations  of  smaller  states,  no  such  hypothesis  will  hold 
good.  There  is  no  probability  that  a  Mercian  king  would  intro- 
duce a  new  constitution  into  the  organization  of  his  kingdom.  It 
was  enough  that  the  Hwiccians,  or  Hecanians,  or  Magassetanians 
had  their  folkmoot,  without  the  Mercians  [the  United  Kingdom] 
having  one  too,  and  it  was  enough  for  the  king,  as  ruler  of  Mercia, 
to  have  his  witenagemot  without  continuing  to  hold  similar  gather- 
ings as  overlord  of  Hwiccia  and  the  associated  districts.  The  folk- 
moot  was  left  to  the  shire,  the  witenagemot  was  gathered  round 
the  king."  —  Stubbs,   Coiutitiitional  History  of  England,  I.   140, 


64  SOURCES    OF   THE    CONSTITUTION.        chap. 

the  newer  kingdom  covered  enlarged  territory,  its  gemot 
was  held  in  central  or  shifting  localities,  necessarily  re- 
mote from  the  homes  of  most  of  the  people,  and  could  not 
be  attended  by  all,  or  indeed  by  any  considerable  number 
of  the  humbler  freemen,  and  thus  its  active  membership 
became  practically  limited  to  persons  of  rank  and  to  the 
great  officers  of  the  royal  court.  The  folkmoot  was  left  to 
the  shire,  the  Witenagemot  was  gathered  round  the  king.^ 

141.  See  Gneist,  Verwaltiings7-echt,  I.  43,  who  seems  to  consider 
the  folkmoot  of  the  shire  identical  with  the  witenagemot. 

^  Stubbs,  Constitutional  History  of  England,  I.  141.  Kemble 
gives  an  admirable  pointing  to  this  subject :  "  In  a  country  overrun 
with  forests,  intersected  with  deep  streams  or  extensive  marshes, 
and  but  ill  provided  with  the  means  of  internal  communication,  suit 
and  service  even  at  the  county-court  must  have  been  a  hardship  to 
the  cultivator;  a  duty  performed  not  without  danger,  and  often 
vexatiously  interfering  with  agricultural  processes  on  which  the 
hopes  of  the  year  might  depend.  Much  more  keenly  would  this 
have  been  felt  had  every  freeman  been  called  upon  to  attend  beyond 
the  limits  of  his  own  shire,  in  places  distant  from,  and  totally  un- 
known to  him :  how,  for  example,  Avould  a  cultivator  from  Essex 
have  been  likely  to  look  upon  a  journey  into  Gloucestershire  at  the 
severe  season  of  Christmas,  or  the,  to  him,  important  farming  period 
of  Easter?  [These  were  usual  periods  for  holding  the  gemot.] 
What,  moreover,  could  he  care  for  general  laws  affecting  many 
districts  beside  the  one  in  which  he  lived,  or  for  regulations  apply- 
ing to  fractions  of  society  in  which  he  had  no  interest?  For  the 
Saxon  cultivator  was  not  then  a  politician;  nor  were  general  rules 
which  embraced  a  whole  kingdom  of  the  same  moment  to  him  as 
those  which  might  concern  the  little  locality  in  which  his  alod  lay. 
Or  what  benefit  could  be  expected  from  his  attendance  at  delibera- 
tions which  concerned  parts  of  the  country  with  whose  mode  of 
life  and  necessities  he  was  totally  unacquainted?  Lastly,  what  evil 
must  have  resulted  to  the  republic  by  the  withdrawal  of  whole 


III.  LEGISLATIVE    ORGANISM.  65 

Folkmoots  in  the  shape  of  shiremoots  Ungered,  with 
various  changes,,  far  down  into  the  Middle  Ages.  And 
so  late  as  the  reign  of  Athelstan  they  took  part  in  agree- 
ing to  legislation,  though  not  in  originating  it.  Yet  even 
at  sessions  of  the  Witan,  the  freemen  were  not  wholly 
without  voice  \  for  on  the  coming  together  of  the  military 
host,  some  bodies  of  them,  armed  as  of  old,  probably 

populations  from  their  usual  places  of  employment,  and  the  con- 
gregating in  a  distant  and  unknown  locality?  If  we  consider  these 
facts,  we  shall  find  little  difficulty  in  imagining  that  any  scheme 
which  relieved  him  from  this  burthen  and  threw  it  upon  stronger 
shoulders,  would  be  a  welcome  one,  and  the  foundation  of  a  repre- 
sentative system  seems  laid  a  priori,  and  in  the  nature  of  things 
itself.  To  the  rich  and  powerful  neighbour,  whose  absence  from 
his  farms  was  immaterial,  while  his  bailiffs  remained  on  the  spot  to 
superintend  their  cultivation;  to  the  scirgerefa,  the  earldorman,  the 
royal  reeve,  or  royal  thane,  familiar  with  the  public  business,  and 
having  influence  and  interest  with  the  king;  to  the  bishop  or  abbot 
distinguished  for  his  wisdom  as  well  as  his  station;  to  any  or  all  of 
these  he  would  be  ready  to  commit  the  defence  of  his  small,  private 
interests,  satisfied  to  be  virtually  represented,  if  he  were  not  com- 
pelled to  leave  the  business  and  the  enjoyments  of  his  daily  life.  On 
the  other  hand,  to  whom  could  the  king  look  with  greater  security, 
than  to  the  men  whose  sympathies  were  all  those  of  the  ruling 
caste;  many  of  whom  were  his  own  kinsmen  by  blood  or  marriage, 
more  of  whom  were  his  own  officers;  men,  too,  accustomed  to 
business,  and  practically  acquainted  with  the  wants  of  the  several 
localities?  Or  how,  when  the  customs  and  conditions  of  widely 
different  social  aggregations  were  to  be  considered  and  reconciled, 
could  he  do  better  than  advise  with  those  who  were  most  able  to 
point  out  and  meet  the  difficulties  of  the  task?  Thus  it  appears 
to  me,  by  a  natural  process  did  the  folkmoot,  or  meeting  of  the 
nation,  become  converted  into  a  witenagemot,  or  meeting  of  coun- 
cillors."—  Saxoiis  in  England,  II.  191-194. 


66  SOURCES    OF   THE    CONSTITUTION.        chap. 

took  part  in  the  making  of  laws.  On  other  occasions, 
also,  there  is  trace  of  a  larger  gathering  than  that  of  the 
magistrates  and  wisemen  only ;  and  it  is  not  impossi- 
ble that  the  right  of  all  freemen  to  attend  at  the  Witan, 
as  at  other  councils,  may  have  lingered  in  theory,  even 
if  fitfully  and  uncertainly  put  into  practice.^ 

^  "  The  Witan  gave  their  wed  to  observe,  and  cause  to  be  ob- 
served, the  laws  they  had  enacted.  Eadgar  says,  '  I  command  my 
gerefan,  upon  my  friendship,  and  by  all  they  possess,  to  punish  every 
one  that  will  not  perform  this,  and  who,  by  any  neglect,  shall  break 
the  wed  of  any  Witan.'  This  seems  to  imply  that  the  people  were 
generally  bound  by  the  acts  of  the  Witan  and  their  pledge  or  wed  ; 
and  if  so,  it  would  naturally  involve  the  theory  of  representation. 
But  this  deduction  will  not  stand.  The  whole  principle  of  Teutonic 
legislation  is,  and  always  was,  that  the  law  is  made  by  the  constitu- 
tion of  the  king  and  the  consent  of  the  people :  and  .  .  .  one  way 
in  which  that  consent  was  obtained  was  by  sending  the  capitula 
down  into  the  provinces  or  shires,  and  taking  the  wed  in  the  shire- 
moot.  The  passage  in  the  text  seems  to  presuppose  an  interchange 
of  oaths  and  pledges  between  the  king  and  the  witan  themselves; 
and  even  those  who  had  no  standing  of  their  own  in  the  folcmdt  or 
scirgemot,  were  required  to  be  bound  by  peisonal  consent.  The 
lord  was  just  as  much  commanded  to  take  oath  and  pledge  of  his 
several  dependents  (the  hired  men,  familiares,  or  people  of  his 
household),  as  the  sheriff  was  required  to  take  them  of  the  free 
shire-thanes.  Of  course  this  excludes  all  idea  of  representation  in 
our  modern  sense  of  the  word,  because  with  us  promulgation  by  the 
Parliament  is  sufficient,  and  the  constituent  is  bound,  without  any 
further  ceremony,  by  the  act  of  him  whom  he  has  sent  in  his  own 
place.  But  the  Teutons  certainly  did  not  elect  their  representatives 
as  we  elect  ours,  with  full  power  to  judge,  decide  for,  and  bind  us, 
and  therefore  it  was  right  and  necessary  that  the  laws,  when  made, 
should  be  duly  ratified  and  accepted  by  all  the  people."  —  Kemble, 
Saxons  in  England,  II.  236,  237. 


III.  LEGISLATIVE    ORGANISM.  67 

With  the  union  of  the  heptarchy  under  the  crown  of 
Egbert,  the  heptarchic  Witenagemots  were  merged  in  a 
single  Witenagemot  for  united  England.  The  earlier 
character  of  this  council  remained  essentially  unchanged, 
and  its  active  membership  consisted  of  the  king,  the  earl- 
dormen,  the  king's  thegns,  the  bishops  and  high  ecclesi- 
astics, and  generally  the  wisemen,  —  with  uncertain  and 
occasional  presence  of  lower  elements.  Though  in  real- 
ity an  aristocratic  gathering,  it  stood  for  the  Teutonic 
assembly  in  substantially  representing  and  acting  for  the 
nation  in  all  matters  of  national  concern  ;  and  it  exercised 
powers  derived  from  that  ancient  body. 

This  national  Witenagemot  was  not  destroyed  by  the 
Norman  Conquest.  Its  continuity  remained  unbroken. 
The  name  of  Witan  went  on  in  English  as  long  as  the 
Chronicle  continued,  and  the  new  Latin  name  Magnum 
Concilium,  which  grew  up  by  its  side,  was  simply  a  trans- 
lation of  mycel gemot}  Under  the  feudal  system  of  the 
Norman  epoch,  the  Witan  grew  into  the  Curia  Regis,  the 
court  of  the  king's  vassals,  a  body  which,  owing  to  the 
then  magnitude  of  the  royal  power,  was  scarcely  more 
than  a  ceremonial  coming  together  of  courtiers.  Its 
powers  became  nominal.  Such  as  it  was,  however,  this 
court  of  bishops,  abbots,  earls,  barons,  and  knights  was 
the  council  by  whose  advice  and  consent  the  kings  con- 
descended to  act,  or  to  declare  that  they  acted. - 

By  the  reign  of  Henry  II.  —  perhaps  earlier  —  all  the 

1  Taylor,  Origin  and  Growth  of  the  English  Constitution,  239. 
■^  Stubbs,  Constitutional  History  of  England,  I.  405. 


68  SOURCES   OF   THE    CONSTITUTION.        chap. 

king's  tenants-in-chief  had  a  right  to  be  present  in  this 
great  council  when  special  taxation  was  needed,  and 
possibly  at  other  times.  There  came  to  be  manifested 
a  tendency  also  to  admit  the  whole  body  of  smaller  land- 
owners to  similar  rights,  —  a  tendency  which  may  be 
described  as  towards  the  concentration  of  the  represen- 
tation of  the  counties  in  the  national  Parliament ;  the 
combination  of  the  shiremoots  with  the  Witenagemot  of 
the  kingdom.  But  as,  through  sub-division  of  tenancies, 
the  minor  tenants-in-chief  steadily  grew  in  numbers,  and 
as  they  were  comparatively  poor,  it  must  have  been  diffi- 
cult for  them  to  put  their  rights  into  practice.  However 
enlarged  in  theory,  the  national  council  remained,  there- 
fore, little  more  than  a  gathering  of  the  great  ecclesiastics 
and  nobles  ;  and  it  eventually  developed  into  the  House 
of  Lords. 

"  Of  one  House  of  Parliament  we  may  say,"  observes 
Mr.  Freeman,  "  not  that  it  grew  out  of  the  ancient  as- 
sembly, but  that  it  absolutely  is  the  same  by  personal 
identity.  The  House  of  Lords  not  only  springs  out  of, 
it  actually  is  the  ancient  Witenagemot.  I  can  see  no 
break  between  the  two.  ...  Li  the  consdtution  of  the 
House  of  Lords  I  can  see  nothing  mysterious  or  wonder- 
ful. Its  hereditary  character  came  in,  like  other  things, 
step  by  step,  by  accident  rather  than  by  design.  And  it 
should  not  be  forgotten  that  as  long  as  the  bishops  keep 
their  seats  in  the  House  the  hereditary  character  of  the 
House  does  not  extend  to  all  its  members.  To  me  it 
seems  simply  that  two  classes  of  men,  the  two  highest 


III.  LEGISLATIVE    ORGANISM.  69 

classes,  the  earls  and  the  bishops,  never  lost  or  disused 
that  right  of  attending  the  national  assembly  which  was 
at  first  common  to  them  with  all  other  freemen.  Besides 
these  two  classes  the  king  summoned  other  men  to  an 
early  Parliament,  pretty  much,  it  would  seem,  at  his  own 
pleasure.  .  .  .  The  House  of  Lords,  then,  I  do  not  hes- 
itate to  say,  represents,  or  rather  is,  the  Witenagemot. 
.  .  .  But  the  special  function  of  the  body  into  which 
the  old  national  assembly  has  changed,  the  function  of 
the  '  other  house,'  the  upper  house,  the  House  of  Lords 
as  opposed  to  the  House  of  Commons,  could  not  show 
itself  till  a  second  house  of  a  more  popular  constitution 
had  arisen  by  its  side."  ^ 

The  introduction  of  elected  representatives  into 
the  national  legislature  gave  rise  to  the  modern  Par- 
liament, and  created  a  new  force  that  has  changed 
the  political  course  of  the  world.  This  system,  unknown 
to  ancient  civilization,  rested  in  reality  upon  the  Teu- 
tonic principle  of  legislation  by  the  entire  body  of  free- 
men. The  principle  had  always  proved  inapplicable, 
save  within  limited  territory.  All  attempts  made  without 
representative  machinery,  in  Saxon  and  early  mediaeval 
times,  to  include  in  the  active  membership  of  the  national 
council  persons  below  the  higher  ranks,  had  failed  of 
practical  result.  Yet  the  idea  of  election  and  represen- 
tation in  other  than  legislative  forms,  was  anciently 
familiar  to  the  English  people.  For  the  kingship  itself 
was  elective.  Election  was  of  immemorial  usage  in  the 
^  Grozvth  of  the  English  Constitution,  62-65. 


70  SOURCES   OF  THE   CONSriTUTlON.        chap. 

Church.  From  very  early  Saxon  days  a  reeve  and  four 
men  attended  in  the  court  of  the  hundred,  and  in  the 
shiremoot,  as  chosen  representatives  of  the  town.  And 
in  judicial  matters  the  principle  bore  a  leading  part. 
Under  the  Plantagenets  it  came  to  be  applied  to  almost 
every  kind  of  business,  judicial,  fiscal,  and  administrative. 
Not,  however,  until  the  time  of  John  and  Henry  III.  was 
it  extended  to  the  national  Parliament.^  In  12 13  King 
John  held  a  council  at  St.  Albans,  which  was  attended, 
not  only  by  the  greater  clergy  and  lords,  but  also  by  the 
representative  reeve  and  four  men  from  each  town  on  the 
royal  demesne,  so  long  familiar  to  the  folkmoot.  And 
four  instances  of  summoning  representatives  of  the  shires 

^  "  The  political  systems  of  the  Teutonic  nations,  as  they  appear 
to  us  when  written  history  begins,  contained  the  germs  of  the  rep- 
resentative principle,  and  in  every  one  of  the  modern  European 
states  that  have  arisen  out  of  the  settlements  made  by  the  Teutonic 
nations  on  Roman  soil,  a  serious  attempt  has  at  some  time  been 
made  in  the  direction  of  representative  government.  Tlie  remarkable 
fact  is  that  in  every  continental  state  in  which  such  an  attempt  was 
made,  it  ended  at  last  in  failure  and  disappointment.  By  the  six- 
teenth century,  nearly  every  effort  in  the  direction  of  representative 
government  upon  the  continent  of  Europe  had  come  to  an  end.  In 
England  only,  among  the  Teutonic  nations,  did  the  representative 
system  survive;  in  England  only  has  the  representative  principle  — 
which  has  been  called  '  a  Teutonic  invention'  —  been  able  to  main- 
tain a  continuous  existence.  In  this  way  the  EngHsh  nation  has 
been  able  to  hand  down  the  representative  principle  from  the  bar- 
barian epoch  to  modern  times.  In  this  way  England  has  become 
the  '  mother  of  parliaments,'  —  the  teacher  of  the  science  of  repre- 
sentative government  to  all  the  world."  —  Origin  and  Groiuth  of  the 
English  Constitution,  428,  429. 


111.  LEGISLATIVE    ORGANISM.  71 

to  Parliament  occurred  before  De  INIontfort's  famous 
Parliament  of  1265,  to  which  Hallam  mistakenly  refers  as 
the  "origin  of  popular  representation."^  Thus,  in  1213, 
John  summoned  four  knights  out  of  each  county  to 
Oxford.  In  1254,  forty  years  later,  during  the  absence 
of  Henry  III.  in  Gascony,  Queen  Eleanor  and  the  Earl  of 
Cornwall,  acting  as  regents,  directed  the  sheriffs  to  cause 
"  to  come  before  the  king's  council  at  Westminster,  two 
lawful  and  discreet  knights  from  each  county,  whom  the 
men  of  the  county  shall  have  chosen  for  this  purpose,  in 
the  place  of  all  and  each  of  them,  to  consider,  together 
with  the  knights  of  other  counties,  what  aid  they  will 
grant  to  the  king."-  The  third  instance  was  in  1261, 
during  the  Barons'  War,  when  the  confederate  barons 
summoned  to  St.  Albans  three  knights  from  each  county, 
whom,  however,  Henry  III.  ordered  to  repair  to  himself 
at  Windsor  instead.  x'\nd  the  fourth  instance  occurred 
after  the  overthrow  of  the  king  at  the  battle  of  Lewes, 
May  14,  1264,  when  De  Montfort,  in  the  king's  name, 
called  his  first  Parliament  at  London,  and  summoned  to 
it  four  knights  from  each  shire.     The  great  Parliament 

^  "  Almost  all  judicious  inquirers  seemed  to  have  acquiesced  in 
admitting  this  origin  of  popular  representation."  —  Hallam,  Middle 
Ages.,  III.  27. 

'^  The  original  of  the  writ  reads  "  quatuor  legales  et  discretos 
milites  de  comitatibus  praedictis  [Bedeford  et  Bukingeham.]  quos 
iidem  comitatus  ad  hoc  elegerint,  vice  omnium  et  singulorum 
eorundem  comitatum,  videlicet  duos  de  uno  comitatu  et  duos  de 
alio."  — Lords'  Report  on  the  Dignity  of  a  Peer,  I.  95,  and  App.  I. 
13;  Select  Charters,  367. 


72  SOURCES   OF   THE    CONSTITUTION.        chap. 

which  has  justly  given  to  Simon  De  Montfort  the  title  of 
Founder  of  the  House  of  Commons/  met  in  1265,  when, 
in  the  name  of  the  imprisoned  king,  he  directed  the 
sheriffs  to  return  not  only  two  knights  from  each  shire, 
but  also  two  citizens  from  each  city,  and  two  burgesses 
from  each  borough.  This  practically  completed  the 
constitution  of  the  English  Parliament,  though  for  some 
years  longer  the  meetings  of  the  Great  Council  of  nobles 
continued  frequent,  and  representative  gatherings  were 
held  but  occasionally.  In  the  parlance  of  the  Middle 
Ages,  De  Montfort  admitted  the  Third  Estate  to  power. 
It  was  a  return,  under  the  new  representative  method,  of 
the  popular  element  in  legislative  affairs  which  was  charac- 
teristic of  Teutonic  institutions. 

The  final  settlement  of  the  Parliament  into  two  sepa- 
rate houses  was  accomplished  during  the  thirteenth  and 
fourteenth  centuries.  To  a  Parliament  held  by  Edward 
I."  in  1295  there  were  summoned,  in  addition  to  the  lay 

1  "  Der  Schopfer  des  Hauses  der  Gemeinen."  —  Pauli,  Simon 
von  Montfort. 

2  "The  materials  of  a  parliamentary  constitution  were  ready  to 
his  (Edward's)  hand,  yet  it  cannot  be  denied  that  it  is  to  him  we 
owe  its  regular  and  practical  establishment.  Without  a  single  after- 
thought, or  reservation  of  any  kind,  he  at  once  accepted  the  limi- 
tation of  his  own  powers.  To  the  Parliament  thus  formed  he 
submitted  his  legislative  enactments.  He  requested  their  advice 
on  the  most  important  administrative  measures,  and  even  yielded 
to  them,  though  not  without  some  reluctance,  the  last  remnant  of 
his  powers  of  arbitrary  taxation.  He  had  his  reward.  Great  as 
were  his  achievements  in  peace  and  war,  the  Parliament  of  England 
was  the  noblest  monument  ever  reared   by  mortal  man."  —  S.  R. 


III.  LEGISLATIVE    ORGANISM.  73 

and  spiritual  lords,  two  knights  from  each  shire,  two  citi- 
zens from  each  city,  and  two  burgesses  from  each  bor- 
ough, and  together  with  these,  the  prior  of  each  cathedral 
and  the  archdeacons  of  each  diocese  in  person,  and 
elected  proctors  for  the  cathedral  and  parochial  clergy. 
This  great  Parliament  sat  in  three  separate  houses,  each 
granting  a  different  proportional  tax.  It  was  a  recogni- 
tion of  the  maxim  that  a  tax  required  the  consent  of  w 
those  who  were  expected  to  pay  it.  But  the  clergy  had 
always  been  represented  by  the  bishops  and  other  mem- 
bers of  their  order  in  the  national  councils  —  as  they 
still  are  by  their  bishops.  Moreover,  they  had  long 
voted  taxes  in  their  own  ecclesiastical  assemblies,  the 
provincial  convocations  of  Canterbury  and  York,  and 
were  very  generally  loth  to  take  part  in  legislative  action 
beyond  that  relating  to  subsidies.  It  came  about, 
therefore,  that  though  summoned  to  each  Parliament 
succeeding  that  of  1295,  their  attendance,  reluctant  and 
irregular,  finally  ceased  altogether  in  the  fourteenth  cen- 
tury. Convocation  remaining  a  separate  "  legislature  in 
ecclesiastical  matters,"^  maintained  its  right  to  vote  taxes 
until  long  after  the  Reformation."     In  this  way  England 

Gardiner,  History  of  England,  I.  21.  "It  was  by  Edward  I.  that 
the  bases  were  settled  upon  which  the  English  Constitution  rests.  .  .  . 
There  was  work  enough  left  for  future  generations  to  do,  but  their 
work  would  consist  merely  in  filling  in  the  details  of  the  outline 
which  had  been  drawn  once  for  all  by  a  steady  hand."  —  I/'iil.  I.  16. 

1  Hallam,  Jlidd/e  .4ges,  III.  137. 

2  The  taxation  of  the  clergy  out  of  convocation  was  arranged 
between    Lord    Chancellor   Clarendon   and   Archbishop   Sheldon. 


74  SOURCES   OF   THE    CONSTITUTION.         chap. 

came  to  have  a  legislature  of  two  houses  instead  of 
three.  And  such  was  the  historical  origin  of  the  "  bicam- 
eral system,"  which  in  modern  times  has  spread  from 
England  over  the  Christian  world.^ 

The  actual  date  of  the  separation  of  the  Lords  and 
Commons  is  somewhat  uncertain.  Knights  of  the  shire 
continued  for  a  time  to  vote  with  the  barons  after  the  in- 
troduction into  Parliament  of  city  and  borough  members. 
The  latter  probably  formed  from  the  first  a  distinct 
house,  though  the  earliest  mention  in  the  rolls  of  Parlia- 
ment of  a  separate  session  is  in  1332.-  Two  houses  may 
be  regarded  as  established  usage  by  the  year  1339,  and 
by  1347  the  knights  of  the  shire  had  become  associated 
in  the  membership  of  the  House  of  Commons.^ 

Bishop  Gibson  pronounced  it  "  the  greatest  alteration  of  the  Con- 
stitution ever  made  without  an  express  law."  —  See  Hallam,  Con- 
stitutional History,  III.  240,  241. 

1  The  philosophic  advantages  of  a  bicameral  system  have  been 
ably  discussed  by  Bentham  and  Bowyer  in  England,  and  by  Kent, 
Story,  and  Lieber  in  America.  See  Creasy,  English  Constitution, 
178;  Sheldon  Amos,  Science  of  Politics,  236-246;  Quarterly 
Review,  No.  316,  October  1884,  etc. 

2  Rot.  Pari.,  II.  66. 

^  "  The  knights,  who  represented  the  landed  property  of  the 
country,  gave  the  House  of  Commons,  from  the  first,  stability, 
weight  and  permanence,  and  obtained  for  it  a  respect  which  the 
citizens  and  burgesses  alone  could  not  have  commanded.  .  .  .  The 
commingling  of  the  knights  and  burgesses  in  a  single  House  was 
rendered  possible  by  the  existence  in  the  English  Constitution  of  a 
peculiarity  which  most  prominently  and  honourably  distinguished  it 
from  nearly  every  kindred  constitution  in  Europe, — the  absence  of 
an  exclusive  noble  caste.     In  most  of  the  continental  states  the 


III.  LEGISLATIVE    ORGANISM.  75 

The  development  of  the  organism  of  Parhament  need 
not  be  further  followed.     But  before  leaving  the  theme 

nobles  formed  a  distinct  class,  distinguished,  by  the  privileges  inhe- 
rent in  their  blood,  from  ordinary  freemen,  and  transmitting  their 
privileges,  and  in  some  countries  their  titles  also,  to  all  their  de- 
scendants in  perpetuity.  The  words  '  nobleman '  and  '  gentleman ' 
were  strictly  synonymous;  the  estate  of  the  nobles — wherever  the 
system  of  estates  obtained  —  represented  in  the  national  assembly 
not  only  the  high  nobility,  but  the  class  who,  in  England,  formed 
the 'landed  gentry';  and  the  Commons,  the  Tiers  Atat,  covi%\%\s.A 
almost  exclusively  of  citizens  and  burgesses.  In  England,  on  the 
contrary,  the  privileges  of  nobility  have  always,  except,  perhaps,  in 
the  days  of  the  ancient  Eorlas,  been  confined  to  one  only  of  the 
family  at  a  time,  —  the  actual  possessor  of  the  peerage.  The  sons 
of  peers  are  commoners,  and  on  a  perfect  equality,  as  regards  legal 
and  political  privileges,  with  the  humblest  citizen.  .  .  .  Had  it 
been  otherwise,  the  House  of  Commons  could  scarcely  have  become 
what  it  is  at  the  present  day."  —  Taswell-Langmead,  English  Con- 
stitutional History,  264,  265,  266.  "  On  the  same  benches  on  which 
sat  the  goldsmiths,  drapers,  and  grocers,  who  had  been  returned  to 
Parliament  by  the  commercial  towns,  sat  also  members  who,  in  any 
other  country,  would  have  been  called  noblemen,  — hereditary  lords 
of  manors,  entitled  to  hold  courts  and  to  bear  coat  armour,  and  able 
to  trace  back  an  honourable  descent  through  many  generations." 
—  Macaulay,  History  of  England,  I.  t^Z.  This  fact  has  been  often 
referred  to  as  a  proof  of  the  essential  democracy  of  English  insti- 
tutions. But  there  is  another  side.  Has  not  the  success  of  the 
so-called  democratic  institutions  of  England  been  due  in  part  to 
this  blending  of  the  highest  elements  of  the  nation  ^vith  the  com- 
mon? It  cannot  be  denied  that  the  presence  of  the  aristocratic 
element  gave  a  force  and  stability  in  the  early  days  of  the  House  of 
Commons  that  would  otherwise  have  been  wanting.  How  far  this 
force  has  continued  to  the  present  time  would  be  a  study  full  of 
suggestiveness.  Certainly  the  House  of  Commons  is  the  strongest 
legislative  body  in  the  world,  and  at  the  same  time  the  most 
aristocratic  democratic  body  known  to  history. 


76  SOURCES   OF  THE    CONSTITUTION.        ciiap. 

a  word  should  be  said  regarding  a  nearly  allied  body, 
the  Privy  Council.  From  the  period  of  the  reign  of 
Henry  III.  an  inner  or  executive  council  —  the  Con- 
cilium Ordinarium  —  attained  prominence  in  affairs  of 
government.  This  consisted  of  the  great  court  officers, 
the  judges  and  a  varying  number  of  bishops,  barons 
and  prominent  personages  clerical  and  lay.  It  grew 
out  of,  and  was  at  first  a  part  of,  the  Witenagemot  or 
Great  Council ;  being  in  effect  a  permanent  committee 
to  look  after  state  matters  in  the  interval  between  sessions 
of  the  larger  assembly.  Whenever  the  Great  Council 
met,  this  Ordinary  Council  was  merged  in  that  body  for 
the  time  being.  It  bore  a  mixed  relation  to  executive 
and  judicial  business  ;  and  for  occasions  of  temporary  or 
minor  importance  it  issued  ordinances  having  the  force 
of  statute  law ;  thus  taking  to  itself  legislative  powers. 
As  the  greater  Council  gradually  changed  by  the  devel- 
opment of  the  houses  of  Lords  and  Commons,  the  Ordi- 
nary Council  became  more  and  more  an  official  body 
separate  from  either  house,  though  composed,  to  consid- 
erable degree,  of  persons  who  were  connected  with  Parlia- 
ment also.  Its  membership,  unlike  that  of  the  House 
of  Lords,  with  which  it  remained  most  nearly  associated, 
never  partook  of  an  hereditary  character,  but  was  consti- 
tuted by  appointment  of  the  executive.  It  eventually 
grew  into  the  Privy  Council,  the  constitutional  body  of 
advisers  of  the  king,  whom  he  was  bound  by  the  laws 
and  custom  of  the  realm  to  consult.^     And  such  it  still 

'  Taswell-Langmead,  English  Constitutional  History,  678. 


III.  LEGISLATIVE    ORGANISM.  77 

remains,  although  the  modern  Cabinet  has  now  largely 
absorbed  its  former  functions. 

The  Senate  of  the  United  States  is,  in  reality,  a  devel- 
opment from  the  House  of  Lords  and  the  Privy  Council, 
jointly ;  and  as  both  these  bodies  came  originally  from 
the  older  legislative  council  of  England,  it  is  evolved, 
through  them,  from  that  ancient  Great  Council  and  the 
Witenagemot.  In  the  British-American  colonies,  there 
could  be,  strictly  speaking,  no  House  of  Lords,  because 
there  were  no  resident  nobles.  But  the  governor  of  each 
colony  had  a  council  of  state,  members  of  which  were 
appointed  by  the  executive  or  otherwise.  It  originally 
bore  to  him  essentially  the  same  relation  that  the  Privy 
Council  bore  to  the  king.^  When  the  second  or  lower 
house  of  the  colonial  legislature  appeared,  this  council 
took  on  the  functions  of  an  upper  house,  though  retain- 
ing its  separate  position  as  an  executive,  advisory  body ; 
and  it  thus  had  a  double  character.  But  the  original 
idea  of  an  executive  council,  distinct  from  that  of  an 
upper  parliamentary  chamber,  hngered  in  the  newly 
formed  State  Constitutions  of  Pennsylvania  and  Vermont 
until  after  the  date  of  the  Philadelphia  Convention ; 
these  two  States  delegating  executive  powers  to  a  gov- 
ernor and  council,  and  having,  for  the  time  being,  a 
legislature  of  one  house  only.     The  constitutions  of  all 

^  "The  upper  house  usually  consisted  of  from  six  to  twent}'  men, 
summoned  by  the  colonial  governor,  to  serve  for  an  indefinite  time 
as  ad\nsers  to  the  executive,  just  as  many  years  ago  was  summoned 
the  first  body  of  nobles  in  England  as  advisers  to  the  king."  — 
Thorpe,  Story  of  the  Constitution,  i6. 


78  SOUJiCES   OF   THE    CONSTITUTION.        chap. 

the  other  States  of  that  period  provided  for  the  legis- 
lature of  two  houses  which  had  gradually  grown  up 
under  colonial  experience ;  and  the  upper  house  of  this 
legislature  in  Maryland,  Massachusetts,  New  York,  North 
Carolina,  South  Carolina,  New  Hampshire,  and  Virginia, 
was  called  a  "  Senate."  At  the  Philadelphia  Convention 
an  attempt  was  made  to  engraft  a  privy  council  on  the 
Constitution  of  the  United  States,  in  addition  to  a  Con- 
gress of  two  chambers,  but  the  attempt  failed.^     Instead 

^  Referring  to  the  method  of  the  election  of  senators  in  the 
Constitution,  Campbell  remarks :  "  For  this  novel  feature  in  its 
organization,  we  have,  so  far  as  America  is  concerned,  to  look 
directly  to  Pennsylvania,  in  which  colony  it  alone  prevailed.  When 
Penn  prepared  his  '  Frame  of  Government,'  he  provided  for  a  coun- 
cil or  upper  house  of  the  legislature,  one-third  of  whose  members 
went  out  of  office  every  year,  and  this  system  was  continued  in  the 
first  State  constitutions  of  Pennsylvania  and  Delaware.  But  Penn 
merely  borrowed  this  idea  from  the  Netherland  cities,  where  it  was 
well  known.  The  people  there  had  early  learned  the  advantages 
of  combining  experience  with  new  blood,  and  so,  in  many  of  their 
important  bodies,  they  changed  only  a  fraction  at  a  time."  —  Pta-i- 
tan  in  Holland,  England,  and  America,  II.  423.  See  Motley, 
Dutch  Republic,  I.  83,  as  to  the  senate  of  Antwerp;  and  Davies, 
Holland,  I.  79,  as  to  Dutch  cities.  Campbell's  conclusion  from 
this  claim,  and  that  of  an  age  qualification,  that  "  we  find  in  the 
Senate  of  the  United  States  a  body  which  derives  most  of  the  pecu- 
liarities of  its  organization  from  the  Netherland  republic,  and  not 
from  the  House  of  Lords  "  {Ibid.'),  is  so  wide  of  truth  as  to  need  no 
comment  here.  "  Franklin's  plan  of  government  provided  that  the 
members  should  go  out  in  rotation.  See  Select  yoiirtial  of  Con- 
gress, I.  286.  The  members  of  the  upper  houses  in  New  York, 
Virginia,  and  Delaware  were  elected  on  this  plan."  —  J.  H. 
Robinson,  "Publications  of  the  American  Academy  of  Political 
and  Social  Science"  No.  9,  p.  217,  n.  4. 


III.  LEGISLATIVE    ORGANISM.  79 

of  establishing  a  council,  the  Convention  gave  certain 
powers  of  such  an  executive  body  to  the  national  Senate. 
Indeed,  although  the  Senate  was  created  as  a  branch  of 
the  legislature,  the  early  senators  seem  to  have  thought 
of  it  as  being,  first  and  foremost,  a  body  with  executive 
functions.  And  this  it  was  at  the  beginning.  For  the 
first  five  years  of  its  existence  its  sessions  were  held  with 
closed  doors,  and  its  principal  transactions  related  to  the 
confidential  executive  business  of  treaties  and  the  con- 
firming of  appointments.  Its  present  position  as  a  legis- 
lative chamber  as  powerful  and  as  active  as  the  lower 
house  of  Congress,  has  resulted  only  from  a  long  process 
of  development.  It  has  wielded,  in  fact,  the  three  ele- 
ments of  authority,  —  executive,  legislative,  and  judicial. 
And  notwithstanding  changes  of  form  and  detail,  it  has 
undoubtedly  done  so  in  essential  succession  to  the  old 
combined  council  and  upper  house  of  colonial  days,  and 
through  that,  to  the  English  Privy  Council  and  the  upper 
house  of  Parhament,  and  thus  to  the  Witenagemot.^ 

1  The  question  of  the  similarity  of  the  Senate  to  the  House  of 
Lords  is  likely  to  be  debated  as  long  as  minds  differ.  But  the  his- 
torical derivation  of  that  body  from  the  colonial  senate  or  upper 
house,  which  in  turn  came  from  the  commercial  charter,  and,  by 
imitation  and  the  continuity  of  many  functions  and  relations,  from 
the  House  of  Lords,  is  simply  an  historical  fact.  The  points  of  like- 
ness are  real.  The  points  of  difterence  are  largely  the  result  of  the 
process  of  development,  and  are  therefore  historical.  But  an  inter- 
esting light  is  thrown  on  the  fact  of  conscious  copying  from  the 
House  of  Lords,  by  the  language  used  in  the  Constitutional  Conven- 
tion at  Philadelphia  by  Dickinson,  when  the  Senate  was  under  dis- 
cussion :  "  In  the  formation  of  the  Senate,"  he  said,  "  we  ought  to 


80  SOURCES   OF  THE    CONSTITUTION.        chap. 

The  House  of  Representatives  is  confessedly  evolved 
from  the  House  of  Commons,  through  the  lower  colonial 
house,  and  the  lower  house  of  the  State  legislature.  Its 
name  was  copied  from  the  State  constitutions  of  Massa- 
chusetts, New  Hampshire,  South  Carolina,  Pennsylvania, 
and  Vermont.  In  working  operation  it  has  shown  itself 
to  be  somewhat  dissimilar  to  its  English  original ;  the 
difference  largely  arising  from  the  circumscribed  nature 
of  its  legislative  functions  as  defined  and  limited  by 
Article  I.  of  the  Constitution.  The  American  Congress 
lacks,  indeed,  the  supreme  power  of  Parliament ;  which 
is  unchecked  either  by  the  influence  of  the  sovereign, 
or  by  the  law  of  a  written  constitution.  But,  as  a  matter 
of  fact,  this  differentiation  is  but  added  proof  of  the  true 
process  of  development  through  colonial  forms.  For  the 
colonial  legislature  was  a  strictly  limited  body ;  it  pos- 
sessed no  control  over  the  colonial  executive,  and  its 
law-making  powers  were  modified  by  the  terms  of  a 
written  charter,  as  also  by  the  very  existence  of  the 
supreme  power  of  crown  and  Parliament. 

carry  through  such  a  refining  process  as  will  assimilate  it,  as  nearly 
as  may  be,  to  the  House  of  Lords  of  England."  —  Elliot's  Debates, 
V.  163.  Again,  having  moved,  in  committee  of  the  whole,  "  that 
the  members  of  the  second  branch  [of  Congress]  ought  to  be 
chosen  by  the  individual  legislatures "  —  the  principle  which  was 
incorporated  in  the  Constitution  —  he  said,  that  he  introduced  this 
motion,  because,  among  other  things,  "  he  wished  the  Senate  to  con- 
sist of  the  most  distinguished  characters,  bearing  as  strong  a  like- 
ness to  the  British  House  of  Lords  as  possible;  and  thought  such 
characters  more  likely  to  be  selected  by  the  State  legislatures  than 
in  any  other  mode."  —  Ibid.  166.     See  also  Ibid.  178. 


in.  LEGISLATIVE   ORGANISM  81 

Singular  evidence  of  the  persistence  in  America  of 
even  accidental  elements  in  the  political  usage  of  the 
mother-country,  is  afforded  by  the  proWsion  in  the  Con- 
stitution for  the  presiding  officers.  The  president  of  the 
upper  house  of  Parliament  is  not  necessarily  a  member 
at  all,  but  a  person  holding  an  entirely  outside  office,  in 
connection  with  which  he  bears  relation  to  the  house. 
He  is  not  chosen  by  the  body  over  which  he  presides. 
Thus,  also,  the  chairman  of  the  Senate  is  the  Vice- 
President  of  the  United  States,  an  outside  officer  not 
chosen  by  the  Senators.  He  derives  his  office  from  that 
of  deputy  or  lieutenant  governor,  as  found  in  the  royal 
charters  and  in  colonial  practice.  As  a  possible  successor 
to  the  national  presidency  in  case  of  the  President's 
death  or  disability,  he  is  a  substitute  for  the  heir  appar- 
ent in  hereditary  monarchies.  Many  of  the  new  State 
constitutions  made  provision  for  the  deputy  governor  to 
preside  in  the  upper  house  of  the  legislature,  and  also  to 
succeed  to  the  governorship  in  case  of  vacancy.  In  four 
of  the  States  the  title  applied  to  this  officer  was  '•  Vice- 
President."  The  lower  house  of  Parliament  and  the 
lower  house  of  Congress  has  each  its  •'  Speaker,"  elected 
by  the  chamber  itself  from  among  its  own  members,  —  an 
office  the  origin  of  which  dates  back  to  the  time  when 
the  elect  of  the  House  of  Commons,  representing  that 
body,  communicated  its  proceedings  to  the  king  for  the 
latter's  promulgation  as  law;  acting  as  speaker  for  the 
Commons  to  the  king.^ 

^  "  In  the  use  of  the  word  which  designates  the  presiding  officer 


82  SOURCES   OF  THE    CONSTITUTION.        chap. 

"  If  we  could  conceive  a  political  architect  of  the 
eighteenth  century,"  observes  Sir  Henry  Maine,  "en- 
deavouring to  build  a  new  constitution  in  ignorance  of  the 
existence  of  the  British  Parliament,  or  with  the  deliberate 
determination  to  neglect  it,  he  might  be  supposed  to 
construct  his  legislature  with  one  chamber,  or  three,  or 
four ;  he  would  have  been  in  the  highest  degree  unlikely 
to  construct  it  with  two.  In  the  modern  feudal  world, 
the  community  naturally  distributed  itself  into  classes  or 
Estates,  and  there  are  abundant  traces  of  legislatures  in 
which  these  classes  were  represented  according  to  vari- 
ous principles.  But  the  Estates  of  the  realm  were 
grouped  in  all  sorts  of  ways.  In  France,  the  States 
General  were  composed  of  three  orders,  —  the  clergy,  the 
nobiUty,  and  the  rest  of  the  nation  as  the  Tiers  Etat. 
There  were  three  orders  also  in  Spain.    In  Sweden,  there 

of  [the  House  of  Representatives]  the  Convention  which  framed 
the  Constitution  adopted,  as  it  had  done  in  so  many  other  instances, 
the  language  of  the  law  of  England  in  regard  to  the  presiding 
officer  of  the  House  of  Commons.  While  there  is  in  the  Constitu- 
tion no  very  definite  description  of  the  powers  which  may  be 
exercised  by  the  Speaker  of  the  House,  that  office  has  become,  by 
the  practice  and  the  rules  of  the  House,  the  repository  of  more 
unrestricted  power  than  any  other  officer  of  the  government  of  the 
United  States  possesses."  —  Mr.  Justice  Miller,  Lectures  on  the  Con- 
stitution of  the  United  States,  198.  The  editor  of  this  work,  Mr.  J. 
C.  Bancroft  Davis,  in  referring  in  a  note  to  the  expansion  of  the 
Speaker's  powers  since  the  adoption  of  the  Constitution,  says : 
"The  enormous  power  which  the  Speaker  of  the  House  of  Repre- 
sentative wields  over  the  legislation  of  Congress  ...  is  not  enjoyed 
by  the  presiding  officer  of  that  great  body  in  England  from  7uhence 
the  office  and  its  title  are  derived."  —  Ibid.  219. 


III.  LEGISLATIVE    ORGANISM.  83 

were  four,  —  the  clergy,  the  nobility,  the  burghers,  and 
the  peasants.  The  exceptional  two  houses  of  the  British 
Constitution  arose  from  special  causes."  ' 

Mr.  Freeman,  touching  the  same  subject,  remarks : 
"The  form  of  government  which  political  writers  call 
bicameral —  that  is  to  say,  where  the  legislative  assembly 
consists  of  two  chambers  or  houses  —  arose  out  of  one  of 
the  accidents  of  English  history.  The  merits  of  that 
form  of  government  have  often  been  discussed  in  our 
own  times,  but  it  is  assumed  on  both  sides  that  the  only 
choice  lies  between  one  chamber  and  two ;  no  one  pro- 
poses to  have  three  or  four.  But  most  of  the  continental 
bodies  of  Estates  consisted  ...  of  three  houses ;  in 
Sweden,  where  the  peasants,  the  small  freeholders,  were 
important  enough  to  be  separately  represented  alongside 
of  the  nobles,  clergy,  and  citizens,  there  were  till  lately 
four.  The  number  two  became  the  number  of  our 
houses  of  Parliament,  not  out  of  any  conviction  of  the 
advantages  of  that  number,  but  because  it  was  found 
impossible  to  get  the  clergy  of  England  habitually  to  act, 
as  they  did  elsewhere,  as  a  regular  member  of  the 
parliamentary  body.  They  shrank  from  the  burthen,  or 
they  deemed  secular  legislation  inconsistent  with  their 
profession.  Thus  instead  of  the  clergy  forming,  as 
they  did  in  France,  a  distinct  Estate  of  the  legisla- 
ture, we  got  a  Parliament  of  two  houses.  Lords  and 
Commons."  - 

^  Populai-  Government,  224,  225. 

2  Gr'owth  of  the  English  Constitution,  97. 


84  SOURCES   OF   THE    CONSTITUTION.        chap. 

When  the  question  of  two  houses  of  Congress  was 
under  consideration  in  the  Philadelphia  Convention,  the 
principle  of  a  single  chamber  was  in  disrepute  by  reason 
of  the  recent  failure  of  the  Congress  of  the  Confederation. 
Almost  every  State  represented  in  the  Convention  pos- 
sessed a  legislature  of  two  houses ;  and  the  colonial 
tendency  from  the  beginning  of  settlement  on  the  Western 
Continent  had  been,  as  we  have  seen,  to  follow  the  usage 
of  the  historic  two  houses  of  the  mother-land.  The 
proposal  that  the  new  constitution  should  provide  for  a 
national  legislature  of  two  branches  was  adopted  by  an  all 
but  unanimous  vote  of  the  members  of  the  Convention  ; 
and  Bancroft  pertinently  notes  :  "  The  decision  was  in 
harmony  with  the  undisputed  and  unchanging  conviction 
of  the  whole  people  of  the  United  States."  ^ 

1  History  of  the  Constitution.  Speaking  of  the  adoption,  by  the 
Convention,  of  the  bicameral  system,  Dr.  J.  H.  Robinson  asks :  "  Was 
the  choice  of  the  Convention  then  attributable  to  their  admiration 
of  the  English  Parliament?  Not  solely,  certainly.  There  were,  in 
1787,  no  less  than  eleven  practically  independent  communities, 
within  500  miles  of  Philadelphia,  which  had  accepted  the  bicameral 
system  of  legislating.  It  had  been  known  on  this  side  of  the  Atlantic 
for  more  than  a  century,  and  was  a  simple  and  natural  development 
of  the  colonial  governments."  —  Publications  of  the  American 
Academy,  No.  9,  p.  212. 

"  Since  the  beginning  of  the  French  Revolution,  nearly  all  of  the 
states  of  continental  Europe  have  organized  national  assemblies, 
after  the  model  of  the  English  Parliament,  in  a  spirit  of  conscious 
imitation.  But  the  typical  English  national  assembly,  embodying 
what  is  generally  known  as  the  bicameral  system,  was  not  copied 
into  the  continental  European  constitutions  until  it  had  first  been 
reproduced  in  a  modified  form  by  the  founders  of  the  federal  repub- 


III.  LEGISLATIVE    ORGANISM.  85 

lie  of  the  United  States.  In  the  several  colonial  commonwealths 
founded  by  English  settlers  upon  American  soil,  the  typical  English 
national  assembly  reappeared  in  an  embryonic  form  as  the  predestined 
product  of  a  natural  process  of  reproduction.  These  assemblies '  were 
not  formally  instituted,  but  grew  up  by  themselves,  because  it  was 
in  the  nature  of  Englishmen  to  assemble.'"  —  Taylor,  Origin  and 
Gro-jjth  of  the  English  Constitution,  429;  Seeley,  Expansion  of  Eng- 
land, 67. 


CHAPTER   IV. 


LEGISLATIVE    POWERS. 


WHAT  glimpses  we  have  of  the  earliest  assemblies 
or  gemots  of  England  reveal  the  characteristic 
powers  of  ancient  Teutonic  assemblies,  —  the  exercise  of 
authority  over  tribal  or  national  affairs,  and  the  combin- 
ing of  judicial  with  legislative  functions.  Bede's  account 
of  the  acceptance  of  Christianity  by  the  Council  of  North- 
umbria,  describes  the  king  as  consulting  its  members, 
each  in  turn,  and  giving  final  decision  in  agreement  with 
the  general  voice.^  The  law  of  Wihtraed  reads  :  "  There 
the  great  men  decreed,  with  the  suffrages  of  all,  these 
dooms,  and  added  them  to  the  lawful  customs  of  the  men 
of  Kent."  -  The  prologue  of  the  laws  of  Ini  recounts 
how  "Ini,  by  the  grace  of  God,  king  of  the  West  Saxons, 
with  the  advice  and  by  the  teaching  of  C^nred  my  father, 
and  of  Hedde  my  bishop,  and  Ercenwold  my  bishop,  with 
all  my  earldormen  and  the  most  eminent  Witan  of  my 
people,  and  also  with  a  great  assembly  of  God's  servants,^ 
have  been  considering  respecting  our  soul's  heal  and  the 
stability  of  our  realm,  so  that  right  law  and  right  royal 

^  Bede,  Hist.  EccL,  II.  13.  2  Schmid,  Gesetze,  15. 

'■'  Especially  the  clergy. 

86 


CHAP.  IV.  LEGISLATIVE  POWERS.  87 

judgments  might  be  settled  and  confirmed  among  our 
people," '  etc.  Alfred,  having  compiled  a  body  of  laws 
from  old  sources,  declared  in  their  promulgation,  "  I  then, 
Alfred,  king  of  the  West  Saxons,  showed  these  to  all  my 
Witan,  and  they  then  said  that  it  liked  them  well  so  to 
hold  them."-  The  judicial  action  of  the  assemblies 
which  banished  and  recalled  Wilfrid  is  narrated  by 
Eddius  as  proceeding  in  regular  order  of  accusation, 
defence  and  sentence ;  the  bishops  and  earldormen 
addressing  the  gathering,  and  the  judgment  being  given 
by  the  king  or  ruling  earldorman.^ 

Mention  of  "counsel,"  "consent,"  and  the  like,  to  be 
found  in  legal  formularies  from  early  times,  indicates  this 
definite  relation  of  the  assemblies  to  legislation.  Bede 
tells  how  Ethelbert  made,  '•  with  the  advice  of  his  Witan, 
decrees  and  judgments."*  Edmund  begins  his  laws  by 
declaring  them  to  have  been  established  with  the  counsel 
of  his  Witan,  ecclesiastical  and  lay.'^  Edgar  ordains 
"with  the  counsel  of  his  Witan." "^  Ethelred,  in  the 
preamble  of  the  code  of  1008,  exclaims:  "This  is  the 
ordinance  which  the  king  of  the  English,  with  his  Witan, 
both  clerical  and  lay,  have  chosen  and  ad\ased."  ^ 

^  Schmid,  Gesetze,  21. 

2 Alfred's  Dooms;  Thorpe,  Ancient  Laws  and  Institutes,  I. 
58,  59;   Freeman,  Norman  Conquest,  I.  53. 

3  Eddius,  c.  LIX  (ed.  Gale,  86).  *  Bede,  Hist.  Eccl,  II.  5. 

5  Schmid,  Gesetze,  172,  173,  177.  ^  /^/^,   184-187. 

"  Kemble,  Saxons  in  England,  II.  21 1.  "The  word  ceSsan,  to 
elect  or  choose,  is  the  technical  expression  in  Teutonic  legislation 
for  ordinances  which  have  been  deliberated  upon."  —  Ibid.  211,  n.  7. 


88  SOURCES   OF   THE    CONSTITUTION.        chap. 

During  the  period  from  Egbert  to  Edward  the  Con- 
fessor, the  powers  of  the  national  Witenagemot  were  very 
great.  It  elected  kings,  and  on  occasion  deposed  them. 
It  adopted  laws,  levied  taxes,  made  treaties  of  peace  and 
alliance,  raised  military  and  naval  forces,  gave  grants  of 
folkland,  appointed  and  removed  bishops,  earldormen, 
and  other  chief  ecclesiastical  and  civil  officers,  and 
authorized  the  enforcement  of  decrees  of  the  Church. 
It  possessed  also  the  functions  of  a  supreme  court  of 
justice.^  And  yet,  while  exercising  all  these  powers  at 
intervals,  the  degree  of  its  activity  in  public  affairs  varied 
with  different  reigns,  increasing  or  diminishing  according 
to  the  feebleness  or  the  vigour  of  the  sovereign  for  the 
time  being.     By  the  close  of  the  Saxon  epoch  the  crown 

^  "  Of  the  manner  of  the  deliberations  or  the  forms  of  business 
we  know  little,  but  it  is  not  unlikely  that  they  were  very  compli- 
cated. We  may  conclude  that  the  general  outline  of  the  proceedings 
was  something  of  the  following  order.  On  common  occasions  the 
king  summoned  his  Witan  to  attend  him  at  some  royal  vill,  at 
Christmas,  or  at  Easter,  for  festive  and  ceremonial  as  well  as  busi- 
ness purposes.  On  extraordinary  occasions  he  issued  summonses, 
according  to  the  nature  of  the  exigency,  appointing  the  time  and 
place  of  meeting.  When  assembled,  the  Witan  commenced  their 
session  by  attending  divine  service  and  formally  professing  their 
adherence  to  the  Catholic  faith.  The  king  then  brought  his  prop- 
ositions before  them,  in  the  Prankish  manner,  and  after  due  de- 
liberation they  were  accepted,  modified,  or  rejected.  The  reeves, 
and  perhaps  on  occasion  officers  specially  designated  for  that  ser- 
vice, carried  the  chapters  down  into  the  several  counties,  and  there 
took  a  wed,  or  pledge,  from  the  freemen  that  they  would  abide  by 
what  had  been  enacted."  —  Kemble,  Saxotis  in  England,  II.  232, 
233- 


IV.  LEGISLATIVE  POWERS:  89 

had  absorbed  many  of  its  functions,  though  its  right  to 
advise  and  consent  in  the  making  of  laws  and  in  the 
levy  of  taxes  was  ever  recognized. 

As  the  Witenagemot  survived  the  Norman  Conquest, 
the  same  powers  must  be  theoretically  regarded  as  belong- 
ing to  it  after,  as  belonged  to  it  before,  that  event. ^  Its 
feudalization,  however,  and  the  vigorous  control  exercised 
by  the  Conqueror  and  his  immediate  successors,  reduced 
its  efficiency  almost  to  a  shadow.  Its  meetings  became 
infrequent,  and  the  proceedings  at  them  were,  in  general, 
devoid  of  reality.  Yet,  though  minimizing  its  influence, 
the  Norman  kings  carefully  obsen-ed  old  forms,  and  pro- 
fessed to  act  by  its  '*'  counsel  and  advice."  - 

With  the  accession  of  the  Plantagenets,  much  that 
had  been  lost  was  regained.  Henry  II.  habitually  con- 
sulted his  legislature,  laying  before  it  every  matter  of 
importance.  Richard  Coeur  de  Lion  did  the  same. 
Even  John,  in  the  earlier  half  of  his  reign,  made  formal 
show  of  respect  for  his  authorized  advisers.     And  before 

1  "  As  no  formal  change  took  place  in  the  constitution  of  the 
national  assembly,  so  no  formal  change  took  place  in  its  powers." 
—  P'reeman,  Norrnaji  Conquest,  V.  280.  "  It  seems  to  be  admitted 
that  the  Norman  Conquest  wrought  no  formal  change  in  the  consti- 
tution of  the  Witan;  after  the  Conquest,  the  Great  Council  remains 
in  possession  of  all  the  powers  of  the  old  Witenagemot.  In  legal 
theory,  at  least,  what  the  Witan  was  in  the  days  of  King  Edward, 
it  seems  to  have  remained  in  the  days  of  King  William.  In  the 
forms  of  legislation,  change  there  was  none."  —  Origin  and  Groiuth 
of  the  English  Constitution,  240. 

-"This  immemorial  counsel  and  consent  descends  from  the 
earliest  Teutonic  legislation."  —  Select  Charters,  p.  18. 


90  SOURCES   OF   THE    CONSTITUTION.        chap. 

the  time  of  Henry  III.,  the  Council,  though  still  domi- 
nated by  the  royal  will,  succeeded  in  turning  the  nominal 
assent,  that  Norman  sovereigns  had  taken  for  granted,  into 
a  genuine  consultation,  and  secured  the  provision  of 
Magna  Charta,^  that  no  tax,  except  three  customary  feudal 
aids,  should  be  levied  without  its  consent.  Its  old  right 
to  a  share  in  making  the  laws  became  an  actuality. 
Its  judicial  functions,  at  least  in  the  case  of  high  offenders, 
were  put  in  exercise.  It  dealt  with  foreign  alliances, 
with  the  organization  of  the  national  defence,  and  with 
questions  of  peace  and  war.  During  the  absence  of  the 
sovereign  it  practically  arranged  the  regency,  and  by  a 
series  of  acts  of  electing  and  acknowledging  kings,  it 
reaffirmed  its  ancient  privilege  of  regulating  the  royal 
succession.  In  the  Barons'  War  high  claims  were  made 
and  exceptional  powers  enforced  even  against  the  throne. 
Attaining  under  Edward  I.  its  perfected  organization  of 
two  houses.  Parliament  attained  also,  in  principle,  the 
essentials  of  authority  which  it  has  ever  since  claimed. 
But  only  by  repeated  alternations  of  ascendency  over,  and 
subordination  to,  the  crown,  did  this  authority  gradually 
come  to  be  recognized  by  the  king  and  the  nation  as 
a  really  co-ordinate  element  in  the  government.  Even 
Edward,  though  consulting  his  full  Parliament  on  grave 
affairs,  put  in  its  place,  for  much  of  the  ordinary  work  of 
administration,  his  inner  or  Privy  Council,  and  was  slow 
in  admitting  the  new  House  of  Commons  to  the  rights 
conceded  to  the  older  assembly  of  the  Lords. 
1 M.  C.  XIV. 


IV.  LEGISLATIVE  POWERS.  91 

The  fourteenth  century,  covering  the  reigns  of  Edward 
II.,  Edward  III.,  and  Richard  II.,  saw  much  alternation 
in  the  poUtical  balance.  A  height  of  parliamentary  influ- 
ence was  reached  in  the  earlier  part  of  the  reign  of  Rich- 
ard II.,  when,  the  king  being  a  minor,  the  whole  executive 
government  was  transferred  to  the  two  houses.^  But 
Richard's  later  years  saw  sharp  reaction  in  the  direction 
of  uncontrolled  royal  power  —  a  reaction  that  was  fol- 
lowed in  turn  by  that  king's  deposition,  and  the  seating 
of  Henry  IV.  upon  the  throne,  with  a  parliament-given 
title.  And  legislative  potency  and  privilege  grew  and 
flourished  greatly  under  the  House  of  Lancaster. 

A  succession  of  more  serious  alternations  began  with 
the  ascension  of  the  House  of  York.  At  first  many 
causes  combined  to  weaken  Parliament,  which  dwindled 
to  a  mere  instrument  for  registering  the  royal  will.  Its 
deepest  abasement  was  reached  in  1539,  when  a  par- 
liamentary act  (13  Henry  VIII.  c.  8)  accorded  to  indi- 
vidual proclamations  of  the  sovereign  all  the  force  of 
legislative  statutes."     Not  till  the  reign  of  Elizabeth  did 

1  Hallam,  Middle  Ages,  III.  59. 

2  "A  remarkable  example  of  the  way  in  which  Henry  VIII.  con- 
trived to  unite  the  exercise  of  practically  absolute  power  with  re- 
spect for  constitutional  forms  —  to  play  the  despot  by  the  co-opera- 
tion of  Parliament  —  is  afforded  by  the  act  giving  the  king's 
proclamations  the  force  of  law.  The  king  having  issued  certain 
royal  proclamations,  the  judges  held  that  those  who  disobeyed  them 
could  not  be  punished  by  the  Council.  The  king  then  appealed  to 
Parliament  to  give  his  proclamations  the  force  of  statutes.  This 
request  was  complied  with,  but  not  without  '  many  large  words.'  " 
—  Taswell-Langmead,  English  Constitutional  History,  385. 


92  SOURCES   OF   THE    CONSTITUTION.        chap. 

signs  of  parliamentary  revival  appear.  But  stubborn  asser- 
tion of  the  old  privileges  confronted  James  I.,  and  the 
attempt  of  Charles  I.  to  put  an  extreme  royalist  philos- 
ophy into  practice  in  the  teeth  of  an  aggressive  Puritan 
House  of  Commons,  resulted  in  the  overthrow  of  the 
throne  and  the  House  of  Lords  together  ;  an  overthrow 
so  disastrous,  that  neither  has  since  fully  recovered  the 
place  once  held  in  the  fabric  of  the  state.  In  creating  a 
commonwealth,  however,  the  Commons  went  too  far,  and 
at  the  Restoration  the  pendulum  swung  back  once  more, 
and  a  revival  of  arbitrary  executive  rule  ensued  under 
Charles  II.  and  James  II.  Nevertheless,  the  fate  of  the 
Stuarts  was  to  promote  parliamentary  independence  by 
opposing  it,  and  the  Revolution  of  1688  settled  forever 
the  power  of  the  legislature  by  establishing,  beyond  fur- 
ther question,  the  great  parliamentary  functions. 

Thus  it  came  about  that  under  William  and  Mary,  and 
Queen  Anne,  the  executive  and  legislative  branches  of 
the  government  enjoyed  a  mutually  independent  relation. 
And  although  the  gradual  rise  of  the  Cabinet  system  into 
political  potency,  together  with  the  feebleness  of  the  first 
two  sovereigns  of  the  House  of  Hanover,  prepared  the 
way  for  changes  in  the  England  of  to-day  by  which 
Parliament  has  come  to  control  the  crown,  yet  George 
III.  held  his  own  by  vigorous  assertion  of  royal  influ- 
ence, and  during  his  reign  the  balance  was  maintained 
and  a  check  given  to  final  and  complete  parliamentary 
supremacy.  As  this  particular  phase  of  the  long  consti- 
tutional development,  with  a  distinct  executive  and  legis- 


IV.  LEGISLATIVE   POWERS.  93 

lature,  neither  dominated  by  the  other,  was  akin  to  the 
theory  and  practice  of  executive  and  legislative  relations 
in  the  American  colonies,  and  as  it  was  contemporaneous 
with  the  period  of  American  independence,  it  naturally, 
almost  inevitably,  left  its  impress  upon  the  Constitution 
of  the  United  States. 

Having  thus  briefly  rexaewed  the  process  by  which 
parliamentary  influence  was  evolved,  it  will  be  instructive 
to  take  a  nearer  view  of  the  chief  points  wherein  the 
American  Congress  derives  its  powers  from  this  legislative 
past. 

We  cannot  do  better  than  begin  with  a  characteristic 
point  of  procedure,  by  examining  the  origin  of  bills.  In 
Saxon  times,  and  under  the  Norman  and  early  Plantag- 
enet  kings,  legislation  was  usually  initiated  by  the  sover- 
eign, propositions  being  laid  by  him  before  the  Council 
with  a  view  to  its  advice  and  consent.  But  as  parliamen- 
tary organization  approached  completion,  Parliament 
itself  came  to  take  the  initiative,  and  in  the  fourteenth 
century  nearly  all  legislation  arose  from  its  petitions 
to  the  king.^  The  king's  favourable  answer  gave  to 
petitions  the  force  of  statutes.  But  difficulty  was  early 
experienced  from  evasive,  delayed,  and  othervvise  unsatis- 
factory answers,  and  from  the  fact  that  laws  were  occa- 
sionally placed  upon  the  roll,  as  acts  of  Parliament,  which, 

^  "  The  statutes  are  made  by  the  king  with  the  advice  and  con- 
sent of  the  lords  spiritual  and  temporal;  the  petitions  are  answered 
'/c*  roi  le  veui^  or  '/<?  }oi  s'avisera^  with  the  advace  of  the  lords."  — 
Stubbs,  Constitutional  History  of  England,  III.  500. 


94  SOURCES   OF   THE    CONSTITUTION.        chap. 

in  being  turned  into  statutes  under  the  king's  hand  had 
been  made  to  differ  materially  from  the  purport  of  peti- 
tions.^ Parliament  put  forth  successive  efforts  to  prevent 
such  abuses ;  and  to  complaints  on  the  subject  Henry  V. 
returned  answer  in  14 14  that  "nothing  be  enacted  to  the 
petitions  of  his  Commons  that  be  contrary  of  their  asking 
whereby  they  should  be  bound  without  their  assent."" 

1  This  was  a  grave  matter,  and  affected  the  Records  of  Chancery. 
In  1404  the  Commons  complained  that  a  Subsidy  Act  had  been 
recorded  on  the  Rolls  of  Chancery  in  a  form  contrary  to  their  actual 
grant,  and  prayed  that  their  intention  in  making  the  grant  be 
declared,  and  that  the  Barons  of  the  Exchequer  be  instructed  not 
to  levy  the  subsidy  in  its  untrue  form.  —  See  Clifford,  History  of 
Private  Bill  legislation,  I.  325. 

2  Rot.  Pari.  IV.  22.  This  petition  is  interesting,  as  the  first  instance 
in  which  the  English  language  was  used  in  petitions  by  the  House 
of  Commons.  After  asserting  the  ancient  Teutonic  principle  that 
no  law  could  be  made  without  their  assent,  the  Commons  go  on  to 
say :  "  Consideringe  that  the  Comune  of  youre  lond,  the  whiche 
that  is,  and  ever  hath  be,  a  membre  of  youre  Parlement,  ben  as  well 
Assentirs  as  Peticioners,  that  fro  this  tyme  foreward,  by  compleynte 
of  the  comune  of  eny  myschief  axkynge  remedie  by  mouthe  of  their 
Speker  for  the  Comune,  other  ellys  by  Petition  writen,  that  ther 
never  be  no  Lawe  made  theruppon,  and  engrosed  as  Statut  and 
Lawe,  nother  by  addicions,  nother  by  diminucions,  by  no  maner 
of  terme  or  termes,  the  whiche  that  sholde  chaunge  the  sentence, 
and  the  entente  axked  by  the  Speker  mouthe,  or  the  Petitions 
biforesaid  yeven  up  yn  writyng  by  the  manere  forsaid,  withoute 
assent  of  the  foresaid  Comune.  Consideringe  oure  soverain  lord, 
that  it  is  not  in  no  wyse  the  entente  of  youre  Comunes,  zif  hit  be  so 
that  they  axke  you  by  spekying,  or  by  writying,  too  thynges  or  three, 
or  as  manye  as  theym  lust :  but  that  ever  it  stande  in  the  fredom 
of  your  hie  Regalie,  to  graunte  whiche  of  thoo  that  you  luste,  and 
to  werune  the  remanent."     The  king,  in  replying,  "of  his  grace 


IV.  LEGISLATIVE   POWERS.  95 

In  the  next  reign  a  remedy  was  found  in  the  introduction 
of  completely  drawn  statutes  under  the  name  of  Bills  — 
petitiones  formam  acttiiim  in  se  contmientes}  This  form 
of  procedure,  used  at  first  by  the  Commons  in  their 
grants  of  money,  was  eventually  applied  to  all  varieties 
of  legislation  —  bills  introduced  in  either  house  and 
agreed  to  in  the  other,  being  sent  to  the  king  for  his 
approval  or  veto  without  alteration. 

The  Constitution  of  the  United  States  perpetuates 
this  usage  by  providing  for  the  initiation  of  laws  by 
either  house  in  the  form  of  bills,  and  by  limiting  the 
executive  to  simple  veto  or  approval.  "  Every  bill 
which  shall  have  passed  the  House  of  Representatives 
and  the  Senate,  shall,  before  it  becomes  a  law,  be  pre- 
sented to  the  President  of  the  United  States,"  for  his 
approval  or  veto." 

especial  graunteth  that  fro  hensforth,  no  thyng  be  enacted  to  the 
Peticions  of  his  Comune,  that  be  contrairie  of  hir  askyng,  wharby 
they  shuld  be  bounde  withoute  their  assent.  Savyng  ahvey  to  our 
liege  Lord  his  real  Prerogatif,  to  graunte  and  denye  what  him  lust 
of  their  Petitions  and  askynges  aforesaide." 

1  Ruffhead's  Statutes,  I.  16,  pref. 

2  See  Constitution  of  the  United  States,  Art.  I.  Sec.  7.  The 
general  procedure  of  the  American  Congress  is  based  upon  histori- 
cal antecedents  and  the  experience  growing  out  of  congressional 
life.  "The  provision  that  each  house  may  determine  the  rules 
of  its  proceedings,  has  led  to  the  adoption  of  two  systems,  dif- 
fering widely  from  each  other,  in  each  of  the  bodies.  The  main 
basis,  however,  on  which  those  rules  have  been  constructed,  is 
Jefferson's  Manual,  a  work  prepared  by  him  mainly  from  the  his- 
torical precedents  in  the  English  House  of  Commons.  These  rules 
have  become,  by  many  changes  and  amendments,  very  numerous." 


96  SOURCES   OF  THE    CONSTITUTION.        chap. 

Each  house  of  Parliament  possesses  certain  privileges 
peculiar  to  itself.  The  chief  of  these  which  have  made 
their  way  into  the  Constitution  of  the  United  States 
are  the  judicial  rights  of  the  Senate,  and  the  right  of 
impeachment  and  that  of  initiating  money  bills  which 
belong  to  the  House  of  Representatives.  The  judicial 
powers  usual  to  ancient  Teutonic  assemblies  were  put 
in  operation,  as  already  stated,  by  the  Witenagemot 
of  England,  and  eventually  descended  to  the  House 
of  Lords.  The  right  of  impeachment  was  employed 
by  the  House  of  Commons  as  early  as  1376  (50  Ed- 
ward HI.)  ;  but  the  nearest  approach  to  the  exercise 
of  judicial  functions  ever  made  by  the  lower  house  was 
under  the  form  of  bills  of  attainder,  which  were  in 
reality  a  species  of  legislation.^     Impeachment  became 

—  Miller,  Lectures  on  the  Constitution  of  the  United  States,  194, 
195.  "  Parliamentary  law  "  is  so  familiar  in  the  United  States,  as 
governing  all  public  assemblies,  that  its  origin  is  seldom  considered. 
1  "  The  proceedings  of  Parliament  in  passing  bills  of  attainder, 
and  of  pains  and  penalties,  do  not  varj'  from  those  adopted  in  regard 
to  other  bills.  They  may  be  introduced  into  either  house,  but  ordi- 
narily commence  in  the  House  of  Lords.  They  pass  through  the 
same  stages,  and  when  agreed  to  by  both  houses,  they  receive  the 
royal  assent  in  the  usual  form.  But  the  parties  who  are  subjected 
to  these  proceedings  are  admitted  to  defend  themselves  by  counsel 
and  witnesses  before  both  houses ;  and  the  solemnity  of  the  pro- 
ceeding would  cause  measures  to  be  taken  to  enforce  the  attend- 
ance of  members  upon  their  service  in  Parliament.  In  evil  times 
this  summary  power  of  Parliament  to  punish  criminals  by  statute 
has  been  per\'erted  and  abused,  and  in  the  best  of  times  it  should 
be  regarded  with  jealousy;  but,  whenever  a  fitting  occasion  arises 
for  its  exercise,  it  is  undoubtedly  the  highest  form  of  parliamentary 


IV.  LEGISLATIVE  POWERS.  97 

an  engine  of  great  political  power,  and  though  fitfully 
employed,  was  never  allowed  to  lapse ;  the  last  two 
cases  being  those  of  Warren  Hastings  in  1788,  and  of 
Melville  in  1804.'  In  strictly  judicial  procedure,  the 
Commons  were  held  to  be  accusers  and  advocates, 
and  the  Lords  the  judges  of  the  case.  The  judicial  power 
which  at  one  time  lodged  in  the  whole  Parliament  was 
declared  in  1399,  at  the  suggestion  of  the  Commons 
themselves,  to  reside  in  the  Lords  only.-  The  Constitu- 
tion of  the  United  States,  following  in  this  the  State 
constitutions  of  Delaware,  JSIassachusetts,  New  Hamp- 
shire, New  York,  Pennsylvania,  South  Carolina,  Ver- 
mont, and  Virginia,  gives  judicial  powers  to  the  upper, 
and  the  right  of  impeachment  to  the  lower,  house. 
"  The  Senate  shall  have  the  sole  power  to  try  impeach- 
ments.     When  sitting  for  that  purpose,  they  shall   be 

judicature."  —  May,  Parliamentaj-y  Practice,  ed.  1883,  p.  744. 
"  The  nearest  approach  "  of  the  House  of  Commons  to  participa- 
tion in  a  trial  "was  made  when,  in  12S3,  they  were  summoned  to 
Shrewsbury  on  the  trial  of  David  of  Wales;  but  they  attended 
merely  as  witnesses."  —  Stubbs,  Constitutional  History  of  England, 
II.  270,  271. 

1  From  the  impeachment  of  Sir  Giles  Mompesson  and  Lord 
Bacon  in  1621,  down  to  the  Revolution  of  1688,  there  were  about 
forty  cases  of  impeachment.  Among  these  were  the  notable  im- 
peachments of  George  Villers,  Duke  of  Buckingham ;  Thomas  Went- 
worth,  Earl  of  Strafford;  Archbishop  Laud;  and  Edward  Hyde,  Earl 
of  Clarendon.  Under  William  HI.,  Queen  Anne,  and  George  I. 
there  were  fifteen  impeachments;  under  George  III.  there  was  one 
only,  that  of  Lord  Lovat,  1746. 

2  See  Rowland,  Manual  of  English  Constitution,  457;  llallam. 
Constitutional  History,  I.  487  ct  seq. ;  I.  50S,  etc. 


98  SOURCES   OF   THE    CONSTITUTION:        chap. 

on  oath  or  affirmation.  When  the  President  of  the 
United  States  is  tried,  the  Chief  Justice  shall  preside, 
and  no  person  shall  be  convicted  without  the  concur- 
rence of  two-thirds  of  the  members  present.'"  "The 
House  of  Representatives  .  .  .  shall  have  the  sole  power 
of  impeachment."  ^ 

The  power  to  depose  the  executive  himself  was 
claimed  by  the  Witenagemot  and  by  the  later  Parlia- 
ment ;  and  the  exercise  of  such  a  power  is  attested  by 
several  historical  examples.  By  the  terms  of  Article  I. 
of  the  Constitution,  just  quoted,  the  American  executive 
may  likewise  be  removed  from  his  official  position  by 
act  of  the  legislature,  through  a  special  process  of  trial. 

^  Constitution  of  the  United  States,  Art.  I.  Sec.  3. 

2  Ibid.  Art.  I.  Sec.  2.  Though  taken  from  State  usage  (see 
Bryce,  American  Commonwealth,  I.  47;  Robinson,  Publications 
of  American  Academy,  No.  9,  p.  219),  yet  this  part  of  the  Consti- 
tution was  taken  also  and  consciously  from  the  original  English 
usage,  as  is  made  evident  by  the  Federalist  (No.  65)  :  "It  is  not 
disputed  that  the  power  of  originating  the  inquiry,  or  in  other  words, 
of  preferring  the  impeachment,  ought  to  be  lodged  in  the  hands  of 
one  branch  of  the  legislative  body;  will  not  the  reasons  which  in- 
dicate the  propriety  of  this  arrangement  strongly  plead  for  an  ad- 
mission of  the  other  branch  of  that  body  to  a  share  of  the  inquiry? 
The  model  from  which  the  idea  of  this  institution  has  been  borrowed, 
pointed  out  that  course  to  the  Convention.  In  Great  Britain,  it  is 
the  province  of  the  House  of  Cojnmons  to  prefer  the  impeachment, 
and  the  House  of  Lords  to  decide  upon  it.  Several  of  the  State  co7t- 
stitutions  have  follo-,ved  the  same  example."  Seven  persons  have 
been  impeached  in  the  United  States.  Of  these,  five  have  been  ac- 
quitted; one  a  President  of  the  United  States,  one  a  Justice  of  the 
Supreme  Court,  one  a  District  Judge,  one  a  Senator,  and  one  a 
Secretary  of  War.     Two  District  Judges  have  been  convicted. 


IV.  LEGISLATIVE  POWERS.  99 

Another  point  of  interest  in  the  same  connection  con- 
cerns the  pardoning  power  in  cases  of  impeachment. 
At  the  trial  of  Thomas  Osborne,  Earl  of  Danby,  in  1679, 
in  the  reign  of  Charles  II.,  the  defendant  claimed  the 
right  to  implead  the  king's  pardon  in  bar  of  a  parlia- 
mentary impeachment.  But  the  Commons  resolved, 
"  that  the  pardon  so  impleaded  was  illegal  and  void, 
and  ought  not  to  be  allowed  in  bar  of  the  impeachment 
of  the  Commons  of  England."  ^  Before  the  question 
could  be  settled.  Parliament  was  prorogued  by  the 
king.  But  in  the  year  following  the  Revolution  of  1688 
the  Commons  again  voted,  that  "  a  pardon  is  not  plead- 
able in  bar  of  an  impeachment."  ^  Finally,  it  was  de- 
cided by  the  Act  of  Settlement  (12  and  13  Wilham  III., 
c.  2),  "that  no  pardon  under  the  Great  Seal  of  England 
shall  be  pleadable  to  an  impeachment  by  the  Commons 
in  Parliament."  The  crown's  right  to  pardon  after  sen- 
tence remains,  and  has  been  exercised  occasionally,  with 
the  effect  of  nullifying  the  action  of  Parliament.^  But 
the  Constitution  of  the  United  States,  following  the 
historical  spirit,  goes  beyond  the  letter  of  the  English 
usage,  by  restricting  the  pardoning  power  so  as  expressly 

1  Commons  youriial,  28  April  and  5  May,  1679. 
^  Ibid.  6  June,  1689. 

2  The  sentence  on  Lord  Chancellor  Bacon  was  remitted  by 
James  I.  Indirectly  the  Commons  possess  the  power  of  pardoning, 
by  declining  to  demand  judgment  after  the  Lords  have  found 
the  accused  guilty;  for  judgment  cannot  be  pronounced  by  the 
Lords  until  it  is  demanded  by  the  Commons.  See  May,  Parlia- 
mentary Practice,  9th  ed.,  739. 


100  SOURCES   OF   THE    CONSTITUTION.        chap. 

to  exclude  impeached  persons.  The  President  "  shall 
have  power  to  grant  reprieves  and  pardons  for  offences 
against  the  United  States,  except  in  cases  of  impeach- 
menty^ 

The  right  of  the  House  of  Commons  to  initiate  money- 
bills  dates  from  1407.  A  question  on  the  subject  having 
arisen  between  the  houses,  Henry  IV.  ordained  in  that 
year,  that  the  Commons  should  "grant,"  and  the  Lords 
"assent  to,"  votes  of  money,  which  should  be  reported 
to  the  king  "  by  the  mouth  of  the  Speaker  of  the  Com- 
mons." ^  Subsequent  attempts  of  the  House  of  Lords 
to  encroach  upon  this  privilege  were  energetically  re- 
sisted by  the  lower  house.  The  latter  even  held  that 
money  bills  should  not  be  so  much  as  amended  by  the 
Lords ;  and  whenever  such  amendments  actually  were 
made,  and  were  thought  desirable  by  the  Commons, 
contest  over  the  point  of  privilege  was  avoided  by 
dropping  the  amended  bill  altogether,  passing  a  fresh 
one  embodying  the  purpose  of  the  amendments,  and 
sending  it  up  for  the  simple  assent  of  the  upper  cham- 
ber. However  this  might  answer  as  a  nominal  protec- 
tion of  the  privilege,  it  nevertheless  gave  force  to  the 
Lords'  amendments.  The  right  of  the  Lords  "  to  pass 
all  or  reject  all  without  diminution  or  alteration"  was 
admitted  by  the  Commons  in  16  71  and  in  1689  ;  but  the 
peers  seldom  put  the  right  into  practice.  At  the  period 
of  the  formation  of  the  American    Constitution  it   was 

^  Cojistitution  of  the  United  States,  Art.  II.  Sec.  2. 

2  Rot.  Pari.  III.  611;  see  also  Lords'  Report,  I.  358,  359. 


rv.  LEGISLATIVE  POWERS.  101 

matter  of  fresh  parliamentary  history,  that  although  only 
the  lower  house  could  originate  money  bills,  the  Lords 
were  not  without  practical  voice  regarding  them.  The 
Constitution  of  the  United  States  provides,  in  language 
closely  copied  from  the  State  constitutions  of  Massachu- 
setts and  New  Hampshire,  "  that  all  bills  for  raising 
revenue  shall  originate  in  the  House  of  Representatives ; 
but  the  Senate  may  propose  and  concur  with  amend- 
ments as  on  other  bills."  '  Notwithstanding  such  specific 
constitutional  authorization,  the  English  traditional  spirit 
of  complete  restriction  as  regards  this  privilege,  has 
manifested  itself  with  singular  force  and   persistency  in 

1  Constitution  of  the  United  States,  Art.  I.  Sec.  7.  The  debate 
on  this  portion  of  the  Constitution  in  the  Philadelphia  Convention 
is  full  of  references  to  English  historical  iisage.  Rutledge,  refer- 
ring in  the  course  of  the  argument,  to  members  of  the  Convention 
who  had  taken  part,  says:  "They  tell  us  that  we  ought  to  be 
guided  by  the  long  experience  of  Great  Britain,  and  not  our  own 
experience  of  eleven  years.  .  .  .  The  House  of  Commons  not 
only  have  the  exclusive  right  of  originating,  but  the  Lords  are  not 
allowed  to  alter  or  amend  a  money  bill."  — Elliot,  Debates,  V.  419. 
The  English  usage  was  adopted,  modified  only  by  the  distinct  asser- 
tion of  the  right  of  the  upper  house  to  a  voice  in  amendments. 
Further  light  upon  the  action  of  the  Convention  in  consciously  fol- 
lowing English  examples  is  supplied  by  the  Federalist:  —  "The 
House  of  Representatives  can  not  only  refuse,  but  they  alone  can 
propose,  the  supplies  requisite  for  the  support  of  government. 
They,  in  a  word,  hold  the  purse;  that  powerful  instrument  by 
which  we  behold,  in  the  history  of  the  British  Constitution,  an 
infant  and  humble  representation  of  the  people  gradually  enlarging 
the  sphere  of  its  activity  and  importance,  and  finally  reducing,  as  far 
as  it  seems  to  have  wished,  all  the  overgrown  prerogatives  of  the 
other  branches  of  the  government."  —  Federalist,  No.  58. 


102  SOUHCES   OF   THE    CONSTITUTION.        chap. 

the  American  lower  house  ;  and  the  Senate  has  estab- 

Ushed  the  practice  of  amending  money  bills,  only  after 

great  difficulty,  and  at  cost  of  repeated  contests  with  the 

Representatives.^ 

1  "  As  we  would  understand  the  meaning  of  the  term  '  revenue ' 
at  the  present  day,  the  expression  '  bills  for  raising  revenue '  would 
have  reference  to  laws  for  the  purpose  of  obtaining  money  by  some 
form  of  taxation,  or  other  means  of  raising  the  necessary  funds  to 
be  used  in  supplying  the  wants  of  the  government,  paying  its 
expenses,  and  discharging  its  debts.  The  appropriation  of  that 
money,  which  is  always  necessarily  done  by  virtue  of  an  act  of 
Congress,  would  seem  to  be  quite  a  different  thing  from  the  laws 
prescribing  how  the  money  shall  be  raised.  In  practice,  however, 
the  House  of  Representatives  has  insisted  that,  not  only  shall  it 
originate  all  bills  of  ways  and  means  for  raising  revenue,  for  which 
purpose  there  is  a  committee  appointed  in  that  body  called  the 
'  Committee  of  Ways  and  Means,'  but  it  has  also  claimed  that  all 
the  appropriation  bills,  and  especially  the  annual  appropriation 
bills,  which  are  prepared  each  year  to  meet  the  current  expenses  of 
the  government  during  the  succeeding  fiscal  year,  shall  originate  in 
that  body;  and  it  has,  therefore,  a  standing  'Committee  on  Appro- 
priations.' This  has  been  the  practice  now  for  so  long  a  time  that 
it  may  be  doubted  whether  it  will  be  seriously  questioned.  The 
Senate,  however,  has  never  given  its  full  consent  to  this  proposition, 
but  has,  on  the  contrary,  from  time  to  time  originated  bills  appro- 
priating money  for  specific  purposes;  although  it  is  not  believed 
that  it  has  for  a  great  many  years  attempted  to  act  upon  any  of  the 
general  appropriation  bills  until  they  have  been  sent  to  that  body 
from  the  House.  ...  It  is  difficult  to  see,  under  this  clause  of  the 
Constitution,  how  it  is,  when  no  new  law  is  necessary  to  raise 
revenue,  that  the  act  appropriating  or  directing  how  the  revenue 
already  raised  .  .  .  shall  be  appropriated  can  be  properly  called  a 
bill  for  raising  revenue.  Undoubtedly  the  adoption  of  this  article 
into  the  Constitution,  and  the  construction  which  has  been  given 
to  it,  is  the  result  of  the  practices  of  our  English  ancestors."  — 
Miller,  Lectures  on  the  Constitution  of  the  United  States,  204,  205. 


IV.  LEGISLATIVE  POWERS.  103 

Privileges  anciently  possessed  by  both  houses  of  Par- 
Hament  equally,  and  common  also  to  both  houses  of 
Congress,  are  freedom  of  speech,  freedom  from  arrest, 
and  the  right  of  the  chambers  to  decide  contested  mem- 
bership.^ 

The  Lords,  being  abundantly  able  to  defend  their  rights 
by  force  of  arms,  seem  always  to  have  exercised  freedom 
of  speech  in  their  own  house,  unchallenged.  But  during 
the  first  three  centuries  of  the  existence  of  the  House  of 
Commons,  the  Speaker  and  individual  members  were  fre- 
quently proceeded  against  by  the  crown  for  utterances 
in  Parliament.  Claims  to  freedom  of  speech  were  early 
made  by  the  Commons ;  and  the  first  of  the  Lancastri- 
ans, Henry  IV.,  affirmed  the  privilege  to  belong  to  both 
houses.  In  1541  ^^i^i  Henry  VIII.)  it  was  named  among 
the  rights  and  privileges  claimed,  from  the  sovereign 
at  the  opening  of  Parliament.-  Eighty  years  later,  in 
162 1,  the  Commons  declared,  "that  every  member  hath 
freedom  from  all  impeachment,  imprisonment,  or  moles- 
tation other  than  censure  of  the  House  itself,  for  or 
concerning  any  bill,  speaking,  reasoning,  or  declaring  of 
any  matter  or  matters  touching  the  Parliament,  or  Parlia- 
ment business."^  The  last  instance  of  the  crown's  open 
violation  of  the  right  was  in  the  famous  prosecution  of 

^  Sir  Erskine  May,  in  Parliamentary  Practice,  gives  historical 
and  legal  information  as  to  the  various  branches  of  parliamentary 
privileges.  The  phrase  "privilege  of  Parliament"  has  much  wider 
meaning  than  formerly. 

2  Rot.  Pari,  y^  Hen.  VIII. 

3  Hatsell,  Precedents,  I.  79. 


104  SOURCES   OF   THE    CONSTITUTION.        chap. 

Sir  John  Eliot  and  other  members  by  Charles  I.,  —  one  of 
the  acts  that  hastened  that  monarch's  overthrow.  The 
privilege  was  finally  confirmed  by  the  Bill  of  Rights,  the 
ninth  article  of  which  provides,  "that  the  freedom  of 
speech  and  debates  or  proceedings  in  Parliament  ought 
not  to  be  impeached  or  questioned  in  any  court  or  place 
out  of  Parliament."  ^  And,  very  nearly  in  this  language, 
it  appears  in  the  Constitution  of  the  United  States,  as 
belonging  to  the  members  of  Congress  :  "  For  any  speech 
or  debate  in  either  house  they  shall  not  be  questioned  in 
any  other  place."  - 

The  privilege  of  freedom  from  arrest  and  molestation 
probably  dates  from  the  earliest  existence  of  legislative 
bodies  in  England.  Ethelbert,  in  a  law  of  the  Kingdom 
of  Kent  in  the  sixth  century,  ordained  :  "  That  if  the  king 
call  his  leod  (people)  to  him,  and  one  there  do  them 
evil,  let  him  compensate  with  a  twofold  bot  and  fifty 
shillings  to  the  king."  ^  A  law  of  King  Canute  provided  : 
"  That  every  man  be  entitled  to  girth  [/.<?.  freedom  from 
molestation]  to  the  gemot  and  from  the  gemot,  except 
he  be  a  notorious  thief."  *     Members  summoned  to  the 

^  I  Will,  and  Mary,  Sess.  2,  c.  2.  See,  on  the  general  subject. 
May,  Parliamentary  Practice,  1 18-123. 

^  Constittttiott  of  the  United  States,  Art.  I.  Sec.  6. 

3  Ethelbert,  §  I;    Select  Charters,  p.  61. 

*  Canute,  §  83;  cf.  Edward  Conf.  §  2;  Select  Charters,  74; 
Thorpe,  Ancient  Latvs  and  Institutes. 

The  same  freedom  to  persons  attending  upon  ecclesiastical  synods 
was  granted  by  Edward  the  Confessor.  —  LI.  Edward  Conf.  Art.  2, 
cl.  8.  The  law  provides,  "ad  synodos  venientibus,  sive  summoniti 
sint,  sive  per  se  quid  agendum  habuerint,  sit  summa  pax." 


IV.  LEGISLATIVE  POWERS  105 

Parliament  of  later  days  by  the  sovereign  were  supposed 
to  be  under  his  protection.  During  the  reign  of  Edward 
I.  the  legal  principle  was  enunciated,  that  it  was  unbe- 
coming for  a  member  of  the  king's  council  to  be  dis- 
trained in  time  of  its  session  ; '  and  action  of  similar 
purport  was  taken  by  Edward  II.-  A  statute  of  1432 
required  the  punishment  of  any  who  should  molest  comers 
to  Parliament,  giving,  as  in  the  ancient  law  of  Ethelbert, 
double  damages  to  the  party  injured.^  But  notwithstand- 
ing the  immemorial  recognition  of  the  privilege  and 
its  repeated  enactment  in  law,  frequent  contests  took 
place  for  its  enforcement.  Immunity  was  eventually 
extended  to  the  servants  and  to  the  property  of  mem- 
bers,—  an  abuse  on  the  side  of  Parliament.  But  in  1770, 
just  before  the  period  of  American  independence,  the  right 
was  restricted  to  its  ancient  limitations,  giving  freedom 
from  arrest  to  members  only.''  It  has  always  been  re- 
stricted to  arrest  due  to  civil  causes,  and  has  not  inter- 
fered with  the  execution  of  criminal  law  in  cases  of 
"  treason,  felony,  or  breach  of  the  peace."  '" 

This  privilege  in  its  ancient  form  is  found  in  the 
Constitution  of  the  United  States.  "They  [the  senators 
and  representatives]    shall  in  all  cases  except  treason, 

1  Rot.  Pari.  I.  61. 

2  Hatsell,  Precedents,  I.  12. 

^  Stat.  II  Hen.  VI.  c.  11 ;    Statutes,  II.  286;    Rot.  Pari.  IV.  453. 

*  10  Geo.  III.  c.  50.  Several  previous  statutes  had  restrained 
the  evil  in  part:  12  and  13  Will.  III.  c.  3;  2  and  3  Anne,  c.  18; 
II  Geo.  II.  c.  24. 

^  Taswell-Langmead,  English  Constitutional  History.,  328. 


106  SOURCES   OF   THE   CONSTITUTION.        chap. 

felony,  and  breach  of  the  peace,  be  privileged  from 
arrest  at  the  session  of  their  respective  houses,  and  in 
going  to  and  returning  from  the  same."  ^ 

The  right  of  the  House  of  Commons  to  decide  con- 
tested elections  of  members  was  not  originally  looked 
upon  as  a  privilege  of  Parliament,  and  was  not  fully 
estabhshed  as  such  until  the  time  of  Elizabeth.-  In- 
stances of  contact  of  the  Commons  with  disputed  elec- 
tions occurred  in  the  reigns  of  Mary,  Elizabeth,  and 
James  I.'  The  right  was  recognized  by  the  Court  of 
Exchequer  Chamber,  1674;^  by  the  House  of  Lords  in 
1689,*  and  by  the  law  courts  in  1680^  and  1702/  It 
has  been  abandoned  in  our  own  day,  an  act  having  been 
passed  so  recently  as  1868,  providing  for  trial  of  elec- 
tion cases  by  judges  of  the  superior  courts  of  law.*  But 
the  Constitution  of  the  United  States  shows  the  impress 
of  the  period  of  its  formation,  in  the  provision  :  "  Each 
house  shall  be  the  judge  of  the  elections  and  quaUfica- 
tions  of  its  own  members."  '•• 

1  Constitution  of  the  United  States,  Art.  I.  Sec.  6. 

2  D'Ewes,  yownal,  393. 

3  Com.  Jour.,  1  Mary,  27;  Hallam,  Constitutional  History,  7th 
ed.,  I.   275;    Parlia7ne7ttary  History,  I.   967. 

*  Barnardistoft  v.  Soame,  6  Howell,  St.  Tr.  1092. 

5  Ibid.  1 1 19. 

^  Onslow's  Case,  2  Ventris,  37. 

■*  Prideaux  v.  Morris,  2  Salkeld,  502.  The  further  act,  7  Will. 
III.  c.  7,  provided  that  "  the  last  determination  of  the  House  of 
Commons  concerning  the  right  of  election  is  to  be  pursued." 

8  31  and  32  Vic.  c.  125. 

9  Constitution  of  the  United  States,  Art.  I.  Sec.  5.     This  is  a  sin- 


IV.  LEGISLATIVE  POWERS.  107 

Amid  all  the  parliamentar}-  privileges,  that  which  has 
been  most  modified,  and  the  practical  abandonment  of 
which  has  had  the  most  far-reaching  political  results,  con- 
cerns the  secrecy  of  proceedings.  The  original  motive 
for  secrecy  of  debate  was  the  anxiety  of  members  to  pro- 
tect themselves  against  the  disapproval  of  the  sovereign  ; 
but  secrecy  was  found  quite  as  convenient  as  a  cover  to 
hide  proceedings  from  the  constituencies.  And  not  until 
after  prolonged  struggle,  was  the  right  of  the  electors, 
and  of  the  public  at  large,  to  know  what  the  representa- 
tives of  the  nation  were  doing  in  the  Parliament  virtually 
conceded.^  Until  recent  times  the  business  of  legislation 
in  England  was  conducted  with  secrecy.  Provision  for 
ofi&cial  publication  dates  from  the  issue  of  the  "  Diurnal 
Occurrences  of  Parliament,"  beginning  in  1641,  in  the 
time  of  the  Commonwealth.  But  this  was  a  record 
of  transactions  only,  and  the  making  public  of  speeches, 
except  by  special  leave,  was  prohibited  under  severe 
penalties.-  After  the  Restoration,  incorrect  accounts  of 
transactions  having  appeared,  an  act  was  passed  (16S0) 
which    stipulated    that,    under    the    supervision    of    the 

gular  illustration  of  the  fact,  that  some  old  English  usages  which 
have  been  abandoned  in  the  mother- country,  still  siurm'e  in  the 
United  States. 

^  English  Constitutional  History,  149. 

2  Sir  Edward  Dering,  of  Surrenden  Dering,  printed  a  collection 
of  his  own  speeches  without  leave,  and  for  this  oftence  was  ex- 
pelled from  the  House  of  Commons,  and  imprisoned  in  the  Tower 
of  London;  and  his  book  was  ordered  to  be  burnt  by  the  common 
hangman.     Com.  yotir.,  II.  411,  February  2,  1641. 


108  SOURCES   OF  THE    CONSTITUTION.        chap. 

Speaker  of  the  House  of  Commons,  an  authorized 
pubhcation  of  votes  and  proceedings  should  be  made, 
but  still  without  the  debates.'  Nevertheless,  what  pur- 
ported to  be  reports  of  speeches  and  discussions  occa- 
sionally got  into  the  press ;  and  public  opinion  sided 
so  strongly  against  Parliament  in  a  contest  which  it 
undertook  in  17  71,  that  publication  of  debates,  though 
never  formally  legalized,  has  not  since  been  interfered 
with.-  This  settlement  was  recent  history  at  the  time 
of  the  adoption  of  the  Constitution  of  the  United  States, 
which  contains  a  provision  on  the  subject  similar  in 
principle  to  that  existing  subsequently  to  1680  as  the 
law  of  Parliament,  and  relates  only  to  congressional 
action,  and  not  to  debate.  Since  the  adoption  of  the 
Constitution,  however,  debates  have  come  to  be  pub- 
lished, —  though  the  Senate  habitually  met  in  secret 
session  during  the  first  years  of  its  existence,  and  still 
does  so,  with  more  or  less  frequency.  The  requirement 
of  the  Constitution  reads  :  "  Each  house  shall  keep  a 
journal  of  its  proceedings,  and  from  time  to  time  publish 
the  same,  excepting  such  parts  as  may  in  their  judgment 
require  secrecy."  ^ 

In  the  Act  of  Settlement  is  a  clause  to  the  effect  "  that 
no  person  who  has  an  office  or  place  of  profit  under  the 
king,  or  receives  a  pension  from  the  crown,  shall  be 
capable  of  serving  as  a  member  of  the  House  of  Com- 

1  Com.  your.,  IX.  74. 

2  Cobbett,  Parliamentary  History,  XVII.  59-163. 

3  Constitution  of  the  United  States,  Art.  I.  Sec.  5. 


rv.  LEGISLATIVE  POWERS.  109 

mons.'"  This  was  intended  to  check  the  corrupt 
influence  of  the  executive  over  ParHament.  But  the 
exclusion  of  all  national  officers  soon  came  to  be  regarded 
as  too  severe  a  measure,  and  the  clause  was  repealed 
before  it  came  into  actual  operation.-  A  modified  enact- 
ment took  its  place  in  the  reign  of  Queen  Anne.'  But 
the  evil  remained,  the  crown  continuing  to  exert  more 
or  less  control  by  gifts  of  offices  and  pensions.  Thus, 
in  1 741  two  hundred  appointments  were  found  in  the 
possession  of  members  of  the  House  of  Commons.* 
The  Place  Bill  of  1 742  excluded  from  the  House  a 
large  number  of  officials.^  In  1 782,  five  years  before 
the  date  of  the  American  Constitution,  the  Civil  List  Act 
brought  about  further  reform  of  the  same  character ;  and 
the  modern  system,  by  which  an  appointment  to  office 
vacates  membership  in  the  Commons  —  with  possibility 
of  re-election  —  may  be  said  to  date  from  the  passage 
of  this  law.^  The  Constitution  of  the  United  States  goes 
somewhat  beyond  this  final  stage  of  EngUsh  usage,  and 
corresponds  more  nearly  with  the  spirit  of  the  Act  of  Set- 
tlement. "  No  senator  or  representative  shall,  during  the 
time  for  which  he  was  elected,  be  appointed  to  any  civil 
office  under  the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments  whereof 
shall   have    been  increased,  during   such  time ;    and  no 

^  12  and  13  Will.  III.  c.  2.,  III.  6.  ^  5  Anne,  c.  7. 

-  4  Anne,  c.  8,  s.  25  *  Lords'  Protests,  1741. 

'^  15  Geo.  II.  c.  22. 

^  Lord  Rockingham's  Civil  List  Act,  22  Geo.  III.  c.  82. 


110  SOURCES   OF   THE    CONSTITUTION.        chap. 

person  holding  any  office  under  the  United  States  shall 
be  a  member  of  either  house  during  his  continuance  in 
office."' 

It  is  needless  to  consider  in  detail  the  full  list  of 
congressional  powers  enumerated  in  Article  I.,  Section 
8,  of  the  Constitution,  or  to  compare  these  powers  with 
those  of  Parliament  and  of  the  colonial  legislatures  from 
which  they  have  been  mainly  copied  or  derived.^  It 
will  be  interesting,  however,  in  bringing  this  chapter  to 
a   close,  to  review  the    historical  development  of  such 

1  Constitution  of  the  United  States,  Art.  I.  Sec.  6. 

2  Congress  alone  has  the  right  to  declare  war;  and  seemingly 
this  is  a  departure  from  the  usage  of  the  English  Parliament  at  the 
time  the  Constitution  was  adopted.  But  the  ninth  article  of  the 
ordinances  of  131 1  required  that  "the  king  henceforth  shall  not  go 
out  of  his  realm,  nor  undertake  against  any  one  deed  of  war  without 
the  common  assent  of  his  baronage,  and  that  in  Parliament."  —  Stat- 
utes, I.  59.  "  The  right  to  be  consulted  in  war  and  peace,  which 
the  Commons  had  established  under  Edward  III.,  and  maintained 
under  Richard  II.,  was  extended  under  the  Lancastrians,  so  as  to 
include  all  questions  of  national  interest."  —  Taswell-Langmead, 
English  Constitutional  History,  321.  Any  examination  in  detail 
would  reveal  the  fact  that  the  powers  of  Congress  are  really  a 
modification  or  adaptation  of  those  of  the  colonial  legislatures  and 
of  the  English  Parliament.  Congress  has  not  a  supreme  position, 
such  as  Parliament  has.  But  its  construction  as  a  legislature  having 
constitutional  limitations  is  taken  from  the  State  legislatures,  which 
were  limited  by  the  State  constitutions;  and  back  of  these,  from 
the  colonial  legislatures,  which  were  limited  by  the  colonial  charters 
and,  to  some  extent,  by  the  supremacy  of  the  home  Parliament. 
Of  course,  the  differences  between  national  conditions  in  the  United 
States  and  in  England  liavc  introduced  many  American  peculiar- 
ities. 


IT.  LEGISLATIVE  POWERS.  Ill 

fandamental  fimctioDS  as  tbose  of  sopplT  and  accounts, 
and  with  tbem,  of  the  goieral  sabject  of  taxalxm. 

The  principle  of  appn^Hialii^  die  saj^ihes,  ix.  Ttjtii^ 
a  smn  fcx^  specific  paiposes  <MiIy,  instead  of  placing  it 
widioat  leserre  in  the  hands  di.  the  kin^  certainhr  dates 
ba(±  as  &r  as  1353.  F<h^  a  kM^  peiiod  it  was  pot  into 
exercise  onh-  at  tare  interrak,  hot  dmiiig  die  Common- 
weahfa  the  House  of  Commons  ^lined  foil  cxntnd  orer 
expenditure,  with  apparent  advantage  to  die  natioi. 
And  after  the  Restmatioa,  the  Hoi^e  daimed.  and 
Charks  II.  conceded,  the  r^^  of  appn^MiatiaD  in  die 
ApjMt^riation  Act  ci.  1665.^  From  that  time  it  became 
an  indispulaUe  principle,  recognized  by  frequent,  and 
at  la]^;tfa  ccMKtant,  practice,  that  sopfdies  granted  l^ 
Parliament  are  onfyto  be  expended  fior  particnlar  objects 
specified  by  itseUl^  Since  the  reign  <^  William  and 
Mary,  a  dan^e  has  been  inserted  in  the  amraal  Af^xo- 
jMiatioQ  Act,  fixt^ddit^  under  heavy  penalties.  Lords  erf" 
die  Treasury  to  issae,  and  c^iceis  tA  the  Exchequer  to 
obey,  any  warrant  for  the  expenditore  <^  money  in  the 
national  treasury,  opcm  any  other  service  than  that  to 
whidi  it  has  beoi  distincdy  appropriated. 

The  rig^  <^  Parliament  to  audit  accoonts  fidlowed,  by 
natnral  consequence,  the  practice  <tf  appropnating  sup- 
plies. So  early  as  1340  a  parliamentary  c(Mnmittee  was 
a{^XMnted  to  examine  into  the  marma-  in  which  the  last 
subady  had  been  eiqpended.'    Although  Henry  R'.  re- 

»  17  Car.  n.  c.  4.  *RtL  FkrL,  H.  ijn. 

3  HaBxm.  CrmsiiimtMmmi  Hislerj,  IL  355.  356. 


112  SOURCES   OF  THE    CONSTITUTION.        chap. 

sisted  a  similar  movement  in  1406,  he  conceded  the 
right  in  the  year  following ;  and  audit  has  since  been 
regarded  a  settled  usage.  The  two  principles  are  united 
in  a  single  clause  of  the  American  Constitution  :  "  No 
money  shall  be  drawn  from  the  treasury,  but  in  conse- 
quence of  appropriations  made  by  law ;  and  regular 
statement  and  account  of  the  receipts  and  expenditures 
of  all  public  money  shall  be  published  from  time  to  time."^ 
Legislative  control  over  taxation  bears  close  relation 
to  the  history  of  Parliament.  Though  the  Witenagemot 
possessed  the  undoubted  right  of  consenting  to  taxes, 
the  right  was  rarely  put  in  exercise,  the  royal  needs 
being  well  supplied  in  early  days  by  income  from  royal 
farms  and  from  what  had  been  the  folkland,  with  such 
commuted  payments  of  fcorm  fultum,  or  provision  in 
kind,  as  represented  either  the  reserved  rents  from 
ancient  possessions  of  the  crown,  or  the  quasi-volun- 
tary tribute  paid  by  the  nation  to  its  chosen  head.^ 
The  Norman  sovereigns  exacted  feudal  aids  and  other 
special  varieties  of  taxation,  retaining  and  adding  to 
the  imposts  of  the  Saxon  kings.  But  we  have  scant 
evidence  as  to  what  extent  the  consent  of  the  national 
council  was  asked  by  them.  Although  a  tax  of  the 
reign  of  Henry  I.  is  described  as  the  "  aid  which  my 
barons  gave  me,"  ■'  it  would  appear  that  until  the  time 

1  Constitution  of  the  United  States,  Art.  I.  Sec.  9. 
^  Stubbs,  Constitutional  History  of  England,  I.  317. 
^  "  Auxilium   quod  barones  mihi   dederunt."  —  Chron.  Abingd., 
II.  III. 


IV.  LEGISLATIVE   POWERS.  113 

of  Richard  I.  the  sovereign  usually  contented  himself 
with  merely  announcing  in  assembly  the  amounts  needed, 
and  the  reason  for  his  imposing  subsidies. 

Nevertheless,  by  the  feudal  doctrine,  the  payer  of  a 
tax  made  a  voluntary  gift  for  the  relief  of  the  wants  of 
his  ruler ;  and  under  King  John,  a  theory  that  the 
promise  to  pay  tax  affected  only  the  individual  promis- 
ing created  serious  complications  in  the  collection  of 
the  revenues.  Magna  Charta  provided  that,  with  the 
exception  of  three  specified  feudal  aids,  no  tax  should 
be  levied  without  the  assent  of  a  council  duly  convoked. 
Increase  in  the  burden  of  taxation,  and  its  pressure 
upon  all  classes  of  the  nation,  served  to  arouse  attention 
to  the  subject ;  and  the  establishment  of  the  representa- 
tive system  in  Parliament  had  its  essential  origin  in  the 
supposed  necessity  for  obtaining  the  consent,  directly 
or  by  recognized  proxy,  of  all  who  were  taxed. ^ 

After  the  famous  Act  Confirmatio  Chartarum,  in  the 
reign  of  Edward  I.,-  the  exclusive  right  of  the  nation 
to  tax  itself,  through  its  representatives,  became  an 
established  principle ;  though  uniformity  of  practice 
under  it  was  but  gradually  attained.''     Hallam  names  as 

1  "  The  rudimentary  form  of  the  principle  that  representation 
should  accompany  taxation,  gained  ground  after  the  practice  arose 
of  bringing  personal  property  and  income  under  contribution." 
—  Stubbs,  Constiititional  History  of  England,  I.  648. 

2  25  Edw.  I.,  St.  I.  c.  6.  Although  a  statute,  the  Confirmatio 
Chartarum  is  drawn  up  in  the  form  of  a  charter.  It  passed  Par- 
liament, October  10,  1297. 

3  For  a  time  the  Estates  of  the  realm  assented  to  taxes  separately, 
and   each  with  a  separate  quota.     This  custom  gradually  ceased. 


114  SOUKCES   OF   THE   CONSTITUTION.        chap. 

one  of  the  settled  results  of  the  protracted  contest 
between  the  crown  and  the  people  during  the  Middle 
Ages,  that  "  the  king  could  levy  no  sort  of  new  tax  upon 
his  people,  except  by  the  grant  of  his  Parliament."^ 
The  Petition  of  Right  of  Charles  I.  emphatically  asserts 
the  principle,-  and  the  Bill  of  Rights  of  the  time  of 
William  and  Mary  finally  declares,  "  that  levying  money 
for  or  to  the  use  of  the  crown  by  pretence  of  preroga- 
tive without  grant  of  Parliament  for  longer  time,  or  in 
other  manner  than  the  same  is  or  shall  be  granted,  is 
illegal."  ^  It  is  not  too  much  to  say,  that  the  principle 
lies  at  the  foundation  of  all  others  in  the  English  consti- 
tution, and  is  a  chief  source  of  modern  liberties. 

The  last  instance  of  it  was  in  the  eighteenth  year  of  Edward  III. 
"  In  later  reports  both  houses  are  mentioned,  in  conjunction  with 
the  observation  'that  they  have  advised  in  common.'"  —  Gneist, 
English  Parliament,  137,  Shee's  trans. 

1  Constitutional  History,  I.  2.  "  The  dependence  of  supplies 
on  the  redress  of  grievances  originated  under  Richard  II.  It  had 
previously  been  usual  for  the  king  not  to  answer  petitions  until  the 
last  day  of  the  session,  when  the  supplies  had,  of  course,  been 
granted.  The  attempt  to  invert  this  order  of  proceeding  had 
been  declared  by  Richard  II. 's  judges  to  be  high  treason.  But  in 
the  2d  of  Henry  IV.  the  Commons  again  endeavoured  to  secure 
this  important  lever  for  the  application  of  parliamentary  power. 
The  king  resisted  firmly,  and  the  Commons  gave  way  for  the  time, 
but  the  practice  gradually  gained  ground."  —  Tasvvell-Langmead, 
English  Constitutional  History,  312.  As  early  as  1309,  the  Com- 
mons granted  a  subsidy  "  upon  this  condition,  that  the  king  should 
take  advice  and  grant  redress  upon  certain  articles  wherein  they 
are  aggrieved."  —  See  Prynne,  2d  Register,  68.  For  a  case  involving 
a  similar  principle  of  early  date,  see  Parliamentary  Writs,  I.  105. 

-  3  Car.  c.  2,  s.  I.  2  I  Will,  and  Mary,  Sess.  2,  c.  2. 


IV.  LEGISLATIVE  POWERS.  115 

It  was  the  alleged  violation  of  this  constitutional 
principle  of  taxation  by  consent  of  the  taxpayers,  through 
their  elected  or  acknowledged  representatives,  that  led 
to  the  revolt  of  the  colonies  in  America.  The  principle 
appears  among  the  oldest  assertions  of  privilege  on  the 
part  of  the  colonists ;  and  declarations  on  the  subject 
occur  in  their  earliest  legislation.^  The  home  Parliament 
had,  before  the  American  Revolution,  claimed  the  right  to 
tax  the  colonies  ;  but  the  claim  had  never  been  admitted 
on  their  part,  and  it  had  never  been  carried  into  effect. 
Their  opposition  rested  upon  the  fact,  that  they  were 
without  representatives  in  Parliament ;  and  when  George 
III.  forced  an  issue,  petitions  were  addressed  to  the 
crown,  and  protests  put  forth  by  successive  intercolonial 
congresses,  on  this  specific  ground.  The  Declaration  of 
Independence  names,  as  one  of  the  reasons  justifying 
final  separation  from  England,  that  of  her  "  imposing 
taxes  on  us  without  our  consent." 

There  is,  then,  a  certain  historic  fitness  in  the  fact, 
that  first  among  the  powers  of  Congress  enumerated  in 
the  Constitution  of  the  United  States  is  the  power  "  to 
lay  and  collect  taxes." "     That  power  finds  its  proper 

1  In  Ph-mouth,  Massachusetts  Bay,  Virginia,  Maryland,  New 
York,  and  generally.     See  Stor)',  Constitution,  I.  ii6. 

2  Constitution  of  the  United  States,  x\rt.  I.  Sec.  8.  A  limitation 
as  to  appropriations  occurs  in  this  section  of  Article  I. :  "  Xo  appro- 
priation of  money  "  for  the  support  of  armies,  "  shall  be  for  a  longer 
term  than  two  years."  "The  clause,"  as  Robinson  remarks,  "  bears 
an  obvious  analogy  to  the  custom  in  England."  —  Publications  of 
the  American  Academy,  No.  9,  p.  220.     See  also  Federalist,  No.  61, 


116  SOURCES   OF   THE    CONSTITUTION,    chap.  iv. 

mention  there  because  of  the  long  and  eventually  suc- 
cessful struggle  in  the  mother-land  over  the  principle  of 
liberty,  that  the  property  of  the  individual  cannot  be 
taken  from  him  in  the  shape  of  taxation  without  his 
consent,  given  through  his  representatives ;  and  because 
of  the  further  contest  over  the  same  principle,  which 
ended  in  American  independence. 


CHAPTER  V. 


THE   ENGLISH   EXECUTIVE. 


TO  what  extent  and  in  what  manner  the  executive 
of  the  United  States  is  related  to  the  ancient 
executive  of  England,  can  best  be  understood  by  tracing 
the  development  of  the  latter,  and  by  comparing 
the  status  of  the  English  executive  in  the  reign  of 
George  III.  with  that  of  the  American  executive,  as 
defined  in  the  American  Constitution.  The  task  is  diffi- 
cult, because  English  royal  prerogative  is  of  a  character 
well-nigh  undefinable,  and  because  the  history  of  the 
royal  prerogative  is  closely  interwoven  with  the  general 
history  of  the  nation.  But  if  followed  in  outline,  the 
kingly  office  will  be  found  rising  step  by  step  from  a 
simple  Teutonic  original,  until  it  attains  to  practical 
absolutism,  and  then  as  gradually  losing  power  until, 
under  modern  sovereigns,  slight  vestige  of  active  author- 
ity remains.  During  the  colonial  time  the  king  of  Eng- 
land was,  as  we  have  seen,  the  executive  of  America. 
He  governed  the  colonies  in  his  own  person,  and  also 
through  governors,  or  other  representatives.  The  presi- 
dency is  derived  both  directly  and  indirectly  from  the 
kingship,  at  a  stage   of  the   development   of  the   royal 


118  SOURCES    OF  THE    CONSTITUTION.        chap, 

office  subsequent  to  the  period  of  greatest  strength  and 
previous  to  that  of  greatest  weakness. 

In  the  early  Teutonic  tribes,  executive  functions,  as  we 
understand  them,  were  in  an  ill-defined  and  formative 
condition.  There  were  elective  officers  of  various  tides, 
some  for  civil,  and  some  for  military  affairs.  Among 
these  officers  in  certain  tribes  kings  are  named. ^  But 
the  Teutonic  kingship,  though  held  in  high  honour,  had 
only  limited  and  uncertain  powers  in  time  of  peace,  and 
was  not  necessarily  chief  in  command  in  time  of  war ; 
being  quite  different  from  the  ideal  created  by  later 
associations.^  Like  other  officials,  the  king  was  elected  ; 
but  unlike  them,  was  chosen,  with  the  thought  of  blood 

1  From  the  words  of  Caesar  it  has  been  supposed  that  kings  were 
the  exception  rather  than  the  rule.  His  words  are :  "  In  pace, 
nullus  est  communis  magistratus  ;  sed  principes  regionum  atque 
pagorum  inter  suos  jus  dicunt. "  —  De  Bella  Gallico,  VI.  23.  Tacitus 
draws  a  clear  distinction  between  tribes  having  kings,  and  tribes 
not  having  them.  —  Germania,  cc.  25,  44.  Commenting  upon  this, 
so  great  an  authority  as  Kemble  says :  "  Even  in  the  dim  twilight  of 
Teutonic  history,  we  find  tribes  and  nations  subject  to  kings;  others 
again,  acknowledged  no  such  office,  and  Tacitus  seems  to  regard 
this  state  as  the  more  natural  to  our  forefathers.  I  do  not  think  this 
is  clear;  on  the  contrary,  kingship,  in  a  certain  sense,  seems  to  me 
rooted  in  the  German  mind  and  institutions,  and  universal  among 
some  particular  tribes  and  confederacies."  —  Saxons  in  England, 

I-  137- 

2  Waitz  considers  that  the  king  was  the  military  head  in  monarch- 
ical tribes.  See  Deutsche  Verfassungs-Geschichte,  I.  310  sq.  But 
Tacitus  says :  "  Duces  ex  virtute  sumunt  .  .  .  et  duces  exemplo 
potius  quam  imperio,  si  prompti,  si  conspicui,  si  ante  aciem  agant, 
admiratione  praesunt." — Germania,  c.  7.  See  also  Tacitus, 
Germania,  c.  1 1 . 


V.  THE  ENGLISH  EXECUTIVE.  119 

descent,  from  the  fittest  members  of  a  single  family, 
though  there  was  no  essential  succession  from  father  to 
son.^  In  his  hereditary  character,  he  was  the  official 
representative  of  the  unity  of  his  nation,  and  in  such 
sense,  rather  than  in  the  sense  of  rulership,  its  acknowl- 
edged head.  His  title  of  King,  or  Cyning,  the  derivation 
and  meaning  of  which  have  been  much  discussed,  prob- 
ably had  to  do  with  the  idea  of  Cyn  or  Kin ;  kinship 
being  conceived  as  blood  relationship  between  people  of 
one  race.^     The  word  was  used,  perhaps,  as  conveying 

^  Waitz,  Das  Alte  Recht,  203-214;  and  Deutsche  Verfassiings- 
Geschichte,  II.  148-164,  353,  etc.  Allen  says:  "Among  the  mem- 
bers of  the  royal  family  there  seems  to  have  been  an  absolute  liberty 
of  choice,  as  favour,  convenience,  or  accident  determined.  The 
son  was  preferred  to  the  father,  the  brother  to  the  son,  and  in  one 
noted  instance,  the  line  of  the  younger  prevailed  over  the  descend- 
ants of  the  elder  brother,  though  the  latter  had  worn  his  crown 
with  credit  and  ability."  —  Inquiry  into  the  Rise  and  Growth  of 
Royal  Prerogative,  46. 

2  The  meaning  sometimes  given  to  the  word  cyning — "child 
of  the  race,"  from  cyn,  race  or  kin,  and  ing,  the  well-known 
patronymic,  would  seem  to  be  doubtful.  Max  Miiller  states  it  as 
his  opinion  that  "  the  old  Norse  Konr  and  Konungr,  the  old  high 
German  chuninc,  and  the  Anglo-Saxon  cyning,  were  common 
Aryan  words,  not  formed  out  of  German  materials,  and  therefore  not 
to  be  explained  as  regular  German  derivatives.  ...  It  corresponds 
with  the  Sanscrit  gajiaka.  ...  It  simply  meant  father  of  a 
family."  —  Lectures  on  Science  of  Language,  II.  282,  284.  This 
seems  to  accord  with  the  patriarchal  thought  which  may  be 
remotely  associated  with  Teutonic  kingship.  For  as  the  ancient 
conception  of  nationality  was  a  tribal  one,  the  idea  of  the  unity  of 
the  tribe  or  race  might  easily  be  associated  with  the  idea  of  father- 
hood,—  headship  of  a  family.     The  fact  of  an   hereditary   royal 


120  SOC'JiCES   OF  THE    CONSTITUTION,        CH.vr. 

the  thought  of  official  impersonation  of  a  common  nation- 
ality, based  upon  a  common  tribal  or  blood  kinship.  It 
would  be  an  easy  transition,  as  a  tribal  nation  grew  into 
widened  life,  for  the  functions  of  a  national  executive  to 
become  attached,  little  by  little,  to  this  elected  represen- 
tative of  the  race.  And  without  venturing  to  theorize  in 
detail  on  the  rise  of  the  kingly  office  of  later  time  firom 
such  beginnings,  we  may  possibly  surmise  that  some  early 
king  gradually  attained  executive  supremacy  by  absorbing 
powers  before  divided  among  several  officials ;  or  that  an 
officer  Avho  had  acquired  the  attributes  of  national  power 
took  on  the  dignity  of  the  kingly  title  and  relation  to  the 
state.  ^ 

family  majr  look  in  the  same  direction,  and  point  to  a  patriarchal 
source  for  the  royal  oftlce,  the  ro)-al  family  being  the  patriarchal 
line  of  descent  in  the  tribe.  Some  tribes  may  have  whoUy  substi- 
tuted elective  officers  for  the  patriarchate,  and  others  may  have 
modified  the  patriarchal  principle  by  electing  the  c>"ning,  and 
sharing  his  powers  with  elective  officers.  For  differing  opinions  on 
the  meaning  of  Cyning,  see  Freeman,  Xerman  Com^uisiy  I.  5S3. 
5S4;  Schraid,  Gesetie,  551;  Allen,  Grimm,  Palgrave,  etc.  Bishop 
Stubbs  says:  "The  Anglo-Saxon  probably  connected  the  cymng 
with  the  cyn  more  closely  than  scientific  etymology  would  pernuL" 
—  Constitutional  History  0/  Ef^aad^  I.  166. 

^  Kemble  has  an  interesting  chapter  on  the  development  of 
kingship.  Saxons  in  Ef^and,  I.  Chap.  vi.  Dr.  Rudolph  Gneist 
saj"s :  "  Actual  kingship  begins  to  exist,  —  first,  so  soon  as  the  dig- 
nity of  the  chieftain  appears  not  only  in  the  leadership  of  the 
army,  but  when  it  becomes  a  comprehensive,  supreme  power,  includ- 
ing the  office  of  magistrate,  of  protector  of  the  peace,  of  defender 
of  the  Church,  with  the  highest  control  of  the  ommonwealth  in 
every  department;  secondly,  so  soon  as  this  highest  dignity  has 
become  recognized  by  the  popular  idea  as  the  family  right  of  a  hi^- 


V.  THE  ENGLISH  EXECUTIVE.  121 

However  the  office  itself  may  be  accounted  for,  the 
tribes  that  iuiuiigrated  to  Hritain  seem  to  have  been 
among  those  that  were  without  it.  \"el  the  roval  idea 
was  probably  familiar  to  all  tribes,  and  perhaps,  as 
Kemble  thinks,  inherent  in  the  Teutonic  mini!  ;  for 
in  every  instance  kings  were  set  up  by  these  tribesmen 
shortly  after  their  landing.'  According  to  old  records, 
the  first  chieftains  who  came  over  bore  the  titles  of 
Earldormvin "  and  Heretoga,^  the  former  designation  ex- 
pressing civil,  and  the  latter  military,  functions.  lUit 
when  battles  of  conquest  had  been  fought,  and  the 
chiefs  found  themselves  at  the  head  of  a  Teutonic  body 
settled  down  o\\  new  soil,  the  title  of  king  was  assumed.'' 
The  fact  of  military  leadership,  combined  with  the  stub- 
bornness of  the  long  struggle  with  the  native  Britons, 
rendered  the  position  of  these  first  English  kings  stronger 
from  the  outset  than  that  of  any  officials    in  the  older 

born  race.  Directly  both  these  conditions  coexist,  tlie  new  idea 
shows  itself  in  its  new  name."  —  History  of  tlu  English  Constitu- 
tion, I.  14. 

^  "  But  sprung  as  he  was  from  war,  the  king  was  no  mere  war 
leader,  nor  was  he  chosen  on  the  ground  of  warlike  merit.  His 
office  was  not  military,  but  national;  his  creation  marked  the  mo- 
ment when  the  various  groups  of  conquering  warriors  felt  the  need 
of  a  collective  and  national  life."  —  Green,  Making  of  England,  172. 

-  "  Her  comen  twcgen  ealdormen  on  Brytene  Ccrdic  and  Cynric 
his  sdnu."  —  E.  C/iron.,  a.  495. 

^  "  Heora  heretogan  wivron  twcgen  gebroNra,  Ilengest  and 
Horsa."  —  E.  Chron.,  a.  449. 

*  "  Her  Ccrdic  and  Cynric  \Vestseaxcna  rice  onfcngon."  —  /■.'. 
Chron.,  519. 


122  SOURCES   OF   THE    CONSTirUTION.        chap. 

land.  But  the  new  kingship,  like  its  ancient  original, 
was  tribal,  and  not  territorial'  The  king  was  king 
of  his  people,  not  of  the  land  occupied  by  them.-     And 

1  "  It  is  a  consideration  well  worthy  to  be  kept  in  view,  that 
during  a  large  part  of  what  we  usually  term  modern  history  no 
such  conception  was  entertained  as  that  of  'territorial  sovereignty.' 
.  .  .  Territorial  sovereignty  —  the  view  which  connects  sove- 
reignty with  the  possession  of  a  limited  portion  of  the  earth's  sur- 
face —  was  distinctly  an  offshoot,  though  a  tardy  one,  of  feudalism. 
This  might  have  been  expected  a  priori,  for  it  was  feudalism  which 
for  the  first  time  linked  personal  duties,  and  by  consequence  per- 
sonal rights,  to  the  ownership  of  land."  —  Maine,  Aticient  Law, 
76,  78.  "  Clear  cases  of  the  change  are  to  be  seen  in  the  official 
style  of  kings.  Of  our  own  kings.  King  John  was  the  first  who 
always  called  himself  king  of  England.  His  predecessors  com- 
monly or  always  called  themselves  kings  of  the  English."  —  Maine, 
Early  History  of  Institutions,  73. 

2  "  Yor  many  centuries  before  the  union  of  the  Scottish  with  the 
English  crown,  the  title  of  the  king  had  been  that  of  king  of 
England.  In  ancient  times  it  was  otherwise.  During  the  Hep- 
tarchy the  petty  kings  who  ruled  over  the  different  tribes  of  Anglo- 
Saxons  were  styled  kings  of  the  West  Saxons,  Mercians,  North- 
umbrians, Kentishmen,  East  Angles,  East  Saxons,  or  South  Saxons; 
and  after  the  imperfect  union  of  these  states  under  the  West 
Saxons,  the  title  of  the  predominant  prince  continued  to  be  taken 
from  his  subjects,  and  not  from  the  territory  they  inhabited.  There 
are  exceptions,  indeed,  to  this  rule  in  some  of  the  Latin  charters, 
which  the  clergy  were  left  to  fabricate  in  their  own  way;  but  Can- 
ute, a  conqueror,  is  the  first  prince  that  styles  himself  in  his  laws 
king  of  England.  In  the  preamble  to  his  collection  of  laws,  he 
is  called  king  of  the  Danes  and  Northmen,  and  of  the  whole  land 
of  the  Angles.  This  territorial  designation,  however,  was  dropped 
by  his  successors.  The  Confessor  is  styled  king  and  lord  of  the 
Angles;  and,  notwithstanding  the  continual  progress  of  feudal 
notions,  the  Conqueror,  his  sons,  Stephen,  and  the  two  first  prince^ 


V.  THE  ENGLISH  EXECUTIVE.  123 

in  course  of  time  the  ofifice  became  very  common  in 
England,  every  small  tribe  or  clan  having  its  own 
cyning. 

It  was  only  by  the  rise  of  some  of  these  tribal  kings 
into  influence  over  others,  that  the  national  sovereignty 
gradually  appeared.  By  the  seventh  century  there  were 
at  least  eight  greater  kingdoms  in  England,  and,  two 
hundred  years  afterward,  all  were  welded  into  one.  Thus 
the  settlement  made  by  Cerdic  and  Cynric  on  the  southern 
coast  slowly  grew,  by  the  incorporation  of  many  small 
kingdoms  and  independent  earldormanships,  into  the 
lordship  of  the  whole  isle  of  Britain,  into  the  imme- 
diate rulership  of  all  the  English  inhabitants.  An  earl- 
dorman  of  Hampshire  in  this  manner  gradually  developed 
into  the  king  of  the  West  Saxons,  the  king  of  the  Saxons, 
the  king  of  England,  the  king  of  Great  Britain  and  Ireland, 
and  eventually  the  sovereign  head  of  an  empire  extending 
to  every  quarter  of  the  earth. 

The  Church  proved  from  the  first  a  potent  factor  in 
this  higher  development  of  kingship.  The  conversion 
of  the  English  introduced  respect  for  rulers  as  taught 
in    Holy  \\'rit,  and  also  that  for  law   and   authority  as 

of  the  House  of  Plantagenet,  continued  to  use  on  their  great  seal 
the  appellation  of  Rex  Aiiglorum,  though  in  the  preambles  to  their 
charters  and  other  public  instruments  they  sometimes  call  them- 
selves kings  of  England.  John  was  the  first  prince  who  had 
engraved  on  his  great  seal  the  title  of  Rex  Angliie ;  and  in  that 
innovation,  which  has  its  origin  in  the  feudal  fiction  that  the  whole 
soil  of  England  belonged  originally  to  the  king,  he  has  been  fol- 
lowed by  all  his  successors."  —  Allen,  Royal  Prerogative^  52-54- 


124  SOURCES   OF  THE   CONSTITUTION.         chap. 

still  lingering  from  the  old  Roman  empire.  Though 
it  destroyed  the  heathen  claims  of  royal  descent  from 
Woden,  it  surrounded  the  king  v/ith  a  new  and  greater 
sacredness ;  and  the  Christian  service  of  coronation, 
with  its  memorials  of  Jewish  chieftains  and  Christian 
emperors,  made  him  the  "  Lord's  Anointed."  The 
universality  of  the  one  faith,  as  well  as  the  progress  of 
a  new  civilization,  brought  about  contact  with  European 
ideas.  Finally,  the  Church  of  England  united  all 
Englishmen  even  in  the  days  of  the  Heptarchy,  —  the 
jurisdiction  of  the  archepiscopal  see  of  Canterbury  being 
older  than  that  of  the  national  throne,  for  which,  in  many 
particulars,  it  prepared  the  way. 

The  royal  office  also  grew  in  influence  with  every 
advance  in  social  transformation  and  civil  development 
that  marked  the  progress  toward  a  wider  national  life. 
As  head  of  the  state,  the  king  came  to  be  accorded 
many  privileges,  and  to  enjoy  large  income  from  per- 
sonal estates  and  public  revenues.  The  earldormen,  of 
whose  rank  his  ancestors  had  once  been,  came  to  re- 
ceive delegation  of  their  powers  from  him,  and  to  share 
these  with  a  variety  of  royal  officials.  The  royal  comi- 
tatus,  or  body  of  personal  followers,  gave  rise,  in  time, 
to  a  new  territorial  nobility,  created  by  and  directly 
connected  with  the  court. ^      And  the  great  officers  of 

1  Mr.  Taylor  admirably  summarizes  the  facts  relating  to  this  ancient 
Teutonic  institution  of  the  comilalus,  which  Tacitus  refers  to  in  the 
Germania.  "  The  cotniiaius  consisted  originally  of  bands  of  pro- 
fessional warriors,  united  to  a  leader  of  their  choice  in  a  close  and 


V.  THE   ENGLISH  EXECUTIVE.  125 

the  royal  household  became  political  ofificers,  —  a  stand- 
ing council  or  ministry  for  the  transaction  of  ordinary 
civil  business,  and  the  reception  of  judicial  appeals. 
Gradually  the  king  grew  to  be  regarded  as  the  personal 

peculiar  personal  relation.  .  .  .  The  leader  of  such  a  band  was 
a  princeps,  his  warlike  followers,  the  comiies ;  and  it  was  no  dis- 
grace to  any  man  to  be  seen  among  the  followers  of  a  chief.  The 
clanship  or  comitattis  thus  formed  had  its  divisions  of  rank,  which 
were  fixed  by  the  princeps.  There  was  great  emulation  among  the 
comites  of  ev^ry  princeps  as  to  who  should  hold  the  highest  place 
in  his  esteem;  and  among  the  princeps  as  to  who  should  have  the 
most  numerous  and  bravest  following.  To  be  always  surrounded 
by  a  band  of  chosen  young  men  —  in  peace  an  ornament,  in  war  a 
bulwark — was  the  greatest  dignity  and  power  that  a  chief  could 
possess.  Upon  the  battle-field  it  was  a  disgrace  for  the  princeps  to 
be  surpassed  by  his  comites,  and  it  was  a  disgrace  for  the  cotniies 
not  to  equal  their  leader  in  valour.  To  survive  a  battle  in  which 
their  chief  had  fallen  was  eternal  infamy.  To  defend  and  protect 
the  princeps,  to  make  even  their  own  renown  subservient  to  his, 
was  the  highest  and  holiest  duty  of  the  comites.  The  chieftains 
fought  for  victory,  the  comites  for  their  chief.  The  comitatiis  could 
only  be  kept  together  by  violence  and  war,  for  the  comites  were 
entirely  dependent  upon  the  bounty  of  their  chief.  ...  In  the 
bonds  of  this  strange  military  association,  the  chief  and  his  followers 
were  united  by  the  closest  ties  of  mutual  interest  and  honour.  .  .  . 
In  the  structure  of  the  comitatns  was  imbedded  the  germ  of  a  great 
aftergrowth.  The  relation  of  lord  and  vassal,  the  first  outcome  of 
the  comitatns,  was  a  purely  personal  one.  But  in  the  process  of 
time,  when  the  lord  makes  a  grant  of  land  to  his  vassal  in  consider- 
ation of  past  services  and  upon  the  further  consideration  that  the 
vassal  will  hold  such  land  upon  the  tenure  of  military  service,  a  new 
relation  becomes  involved  with  the  old  one.  .  .  .  Each  chieftain 
by  whom  a  war  band  was  led  to  the  conquest  of  Britain,  came  at- 
tended by  his  comites.  .  .  .  As  kingship  advanced  in  power  and 
pri\'ilege,  kings  were  able,  of  course,  to  confer  upon  their  depend- 


126  SOURCES   OF   THE    CONSTITUTION.        chap. 

lord  of  his  people,  and,  to  some  extent,  of  the  soil  also. 
From  the  reign  of  Athelstan  imperial  titles  were  as- 
sumed, either  in  imitation  of  continental  examples,  or, 
more  probably,  in  assertion  of  EngUsh  independence 
of  the  German  emperor.^ 

In  the  sovereignty  as  finally  evolved,  the  king's  powers 
were  considerable.  With  the  advice  and  consent  of  the 
Witenagemot,  he  made  laws  and  regulated  matters  affect- 
ing the  general  welfare.  He  negotiated  peace  and  alli- 
ance, and  received  and  appointed  ambassadors.  Though 
justice  was  administered  in  the  local  courts,  and  also 
through  the  Witenagemot,  he  might  dispense  it  when  the 

ents  a  status  and  emoluments  such  as  no  one  else  could  bestow. 
And  as  the  king  grew  in  power  and  importance,  the  companion  or 
gesith  soon  changed  his  original  title  for  a  new  one  that  more 
clearly  expressed  his  somewhat  changed  relation.  He  became  the 
thegn  or  servant  instead  of  the  companion  of  his  lord.  In  this  way 
originated  a  new  nobility  by  service,  which  grew  and  widened  until 
it  at  last  absorbed  and  superseded  the  older  nobility  of  blood.  .  .  . 
As  a  king  stood  above  earldorman  and  bishop,  so  stood  the  king's 
thegns  above  their  thegns.  .  .  .  The  greatest  boon,  however,  which 
such  a  thegn  expected  his  lord  to  bestow,  was  a  grant  of  land  out 
of  the  public  domain,  which  the  king  had  the  power  to  make  with 
the  consent  of  the  Witan.  Upon  estates  created  in  this  way  the 
thegns  began  to  dwell,  and  thus  ceased  to  be  members  of  their 
master's  household.  And  so  the  thegnhood  grew  into  a  territorial 
nobility." — Origin  and  Growth  of  the  English  Constitution,  no, 
III,  131,  132.  "The  development  of  the  coinitatus  into  a  terri- 
torial nobility  seems  to  be  a  feature  peculiar  to  English  history." 
—  Stubbs,  Constitutional  History  of  England,  I.  152. 

1  On  the  nature  of  the  imperial  title  and  position  held  by  the 
early  kings,  see  Freeman,  Norman  Conquest,  I.  148,  and  Palgrave, 
English  Commonwealth,  pp.  627,  cccxlii-cccxliv. 


V.  THE  ENGLISH  EXECUTIVE.  127 

issue  had  not  elsewhere  obtained  settlement.  His  power 
of  appointment  and  of  conferring  honours  made  its  influ- 
ence felt  in  all  portions  of  the  realm.  As  maintainer  of 
the  peace,  he  called  out  the  police  or  militia  when  neces- 
sary to  preserve  order,  and  exercised  the  right  of  pardon. 
He  was  commander-in-chief  of  the  national  host  in  time 
of  war. 

Yet  this  Saxon  monarchy  was  far  from  being  absolute. 
If  strong  under  a  strong  king,  it  was  weak  under  a 
weak  one.  Its  authority  was  strictly  limited  by  that 
of  the  Witenagemot,  which  participated  in  even'  act 
of  government.  Many  of  its  prerogatives  were  deduced 
from  the  fact  expressed  by  its  very  title,  that  the  king 
was  the  representative  of  his  people.  His  election 
rested  with  the  Witan,  which  might  depose  him.  Coro- 
nation, as  essential  as  election,  partook  of  the  nature 
of  a  ratification  or  second  election,  and  was,  in  effect, 
a  compact  between  king  and  people,  as  well  as  a 
consecration   to  the   kingly  functions    by    the  Church.^ 

^  See  Maskell,  Monumenta  Rittialia  Ecclesiae  Aiiglicanae,  III. 
"  In  its  origin  the  kingship  of  the  English  was  distinctly  elective, 
but  with  a  restriction  of  choice  in  all  ordinary  cases  to  the  members 
of  one  royal  house.  At  the  Norman  Conquest  a  new  royal  stock 
was  substituted  for  the  ancient  one  of  Cerdic  [though  in  truth  the 
Conqueror  was  a  descendant  of  Cerdic],  but  the  elective  character 
of  the  kingship  continued  unaltered.  .  .  .  The  succession  of  Ed- 
ward I.  marks  the  earliest  important  innovation.  He  was  the  first 
king  who  reigned  before  his  coronation.  The  doctrine  of  hered- 
itary right,  which  gradually  arose  as  the  personal  idea  of  kingship 
was  superseded  by  the  territorial  idea,  had  now  largely  obscured 
the  elective  character  of  the  kingship.  .  .  .     But  this  obscuration 


128  SOURCES   OF  THE    CONSTITUTION.        chap. 

Even  while  adding  to  their  authority,  the  kings  parted 
more  and  more  with  its  substantial  exercise,  govern- 
ing through  subordinate  officers,  or  granting  power  away 

was  never  total.  .  .  .  Edward  I.  had  been  recognized  as  king  four 
days  after  the  death  of  his  father.  The  accession  of  Edward  II.  on 
the  day  following  his  father's  decease  marks  a  further  advance  in 
the  hereditary  doctrine;  an  advance,  however,  which  was  more  than 
neutralized  by  the  revival,  against  his  person,  of  the  right  of  the 
national  assembly  to  depose  the  king.  By  the  unopposed  succession 
of  Richard  II.,  to  the  exclusion  of  his  uncles,  the  right  of  represent- 
ative primogeniture  was  for  the  first  time  asserted  in  the  devolution 
of  the  crown.  But  as  in  the  case  of  Edward  II.,  so  in  the  case  of 
Richard,  no  sooner  had  the  doctrine  of  strict  hereditary  descent 
progressed  another  step  than  it  was  met  by  the  reassertion  of  the 
right  of  Parhament  to  depose  the  sovereign,  and  by  the  negation 
of  any  indefeasible  right  of  primogeniture  through  the  election  of 
Henry  of  Lancaster.  It  was  by  the  House  of  York  .  .  .  that  the 
doctrine  of  indefeasible  hereditary  right  was  first  propounded  in  its 
full  force  and  significance.  .  .  .  Yet  even  Edward  IV.  sought  and 
obtained  a  parliamentary  confirmation  of  his  title,  and  when,  a 
quarter  of  a  century  later,  the  crown  was  settled  by  Parliament  on 
Henry  VII.  and  his  issue,  to  the  exclusion  of  the  whole  House  of 
York,  the  kingship  was  replaced  on  its  elective  basis.  The  elective 
right  of  Parliament,  however,  was  now  exercised,  not  periodically 
on  the  death  of  each  sovereign,  .  .  .  but  whenever  it  became  nec- 
essary to  elect  a  new  royal  stock,  as  in  the  case  of  Henry  IV.  and 
of  Henry  VII.  .  .  .  James  I.,  coming  to  the  throne  without  a  legal 
title,  attempted  to  revive  the  Yorkist  theory  of  hereditary  right.  .  .  . 
But  the  theory  of  indefeasible  hereditary  right,  fortified  as  it  was  by 
the  Stuart  addition  of  a  sanction  jure  divino,  utterly  failed  to  take 
permanent  root,  and  was  finally  extirpated  by  the  Revolution  of  1688 
and  the  subsequent  Act  of  Settlement,  which  entailed  the  crown  on 
the  descendants  of  Sophia  of  Hanover.  In  that  statute  Parliament, 
for  the  last  time  in  our  history,  exercised  its  paramount  right  to 
settle  the  succession  to  the  crown." — Taswell-Langmead,  E7iglish 
Constitutional  History,  222-224. 


V.  THE  ENGLISH  EXECUTIVE.  129 

in  delegated  privileges  to  individual  nobles.  The  royal 
resources  were  continually  diminished  by  the  alienation 
of  royal  lands,  —  general  taxation  being  thus  necessitated. 
And  with  taxation  was,  even  in  Saxon  times,  brought  in 
the  element,  which  was  destined  eventually  to  exert, 
through  Parliament,  popular  control  and  direction  of 
the  entire  policy  of  the  crown. 

A  change  came  with  the  Conquest.  Though  William 
the  Conqueror,  claiming  to  reign  as  the  lawful  suc- 
cessor of  the  Saxon  kings,  had  himself  elected  by  the 
Witan  and  proposed  to  follow  customary  forms  and 
usages,  his  imperious  will  created  a  despotism  ;  which 
was  continued,  though  less  wisely,  by  William  Rufus. 
And  Henry  I.  centralized  the  working  of  the  gov- 
ernment in  such  a  manner  as  greatly  to  increase  the 
royal  authority.  Indeed,  the  Norman  conception  of 
the  kingship  combined  the  powers  of  the  Anglo-Saxon 
royalty  at  their  highest  with  those  of  the  contempo- 
raneous feudal  monarchies  of  Europe,  but  without  the 
limitations  of  either.  The  Norman  king  was  not  only 
the  elected  head  of  the  nation,  but  also  lord  paramount 
of  all  land.  He  was  the  source  of  justice,  the  adminis- 
trator of  the  public  finances,  and,  with  the  nominal 
assent  of  a  feudahzed  and  subservient  national  council, 
the  supreme  legislator.  Practically,  he  was  autocratic ; 
for  however  carefully  the  ancient  forms  might  be  re- 
tained, no  force  of  his  time  was  strong  enough  to  curb 
him. 

But  in  England  arbitrary  power  could  not  be  estab- 


130  SOURCES   OF  THE    CONSTITUTION.        chap. 

lished  permanently.  Henry  II.,  founder  of  the  Plantag- 
enet  dynasty,  carried  forward  the  task  of  administrative 
organism  which  Henry  I.  had  begun,  and  achieved  the 
complete  development  of  the  monarchy  on  a  feudalized 
yet  national  basis.  But  while  strengthening  the  crown, 
he  took  pains  to  revive  the  efficiency  of  the  legislature, 
by  consulting  it  in  all  important  affairs.  The  forces  of 
the  nation,  also,  gradually  underwent  transformation  in 
the  merging  of  Saxon  and  Norman  —  both  of  Teutonic 
blood  —  into  a  single  people.  King  John's  abuse  of 
power  found  a  Norman  baronage  ready  to  champion  old 
English  liberties ;  ^  and  Magna  Charta,  though  in  the 
form  of  a  royal  grant,  was  really  a  constitutional  treaty 
or  compact  between  the  king  and  the   nation,  in  asser- 

1  "The  Great  Charter  of  liberties  was  the  outcome  of  a  move- 
ment of  all  the  freemen  of  the  realm,  led  by  their  natural  leaders, 
the  barons.  Far  from  being  a  '  mere  piece  of  class  legislation,' 
extorted  by  the  barons  alone  for  their  own  special  interests,  it  is  in 
itself  a  noble  and  remarkable  proof  of  the  sympathy  and  union 
then  existing  between  the  aristocracy  and  all  classes  of  the  com- 
monality. At  least  one-third  of  its  provisions  relate  to  promises 
and  guarantees  on  behalf  of  the  people  in  general,  as  contradis- 
tinguished from  the  baronage.  But  one  fact  is  especially  significant. 
The  important  and  comprehensive  clause  (60),  by  which  the  cus- 
toms and  liberties  granted  to  the  king's  tenants-in-chief  are  ex- 
pressly extended  to  every  sub-tenant  in  the  kingdom,  did  not,  like 
the  similar  provision  in  the  Charter  of  Henry  I.,  emanate  from  the 
king,  but  was  spontaneously  included  by  the  barons  themselves  in 
the  articles  presented  to  John  as  a  summary  of  their  demands."  — 
Taswell-Langmead,  English  ConstitiUional  History,  102.  See 
Articles  of  the  Barons,  c.  48;  Blackstone's  Charters,  1-9;  Select 
Charters,  286;   Alagna  Charta,  c.  60. 


V.  THE   ENGLISH  EXECUTIVE.  131 

tion  of  ancient  limitations  of  the  crown,  and  in  protec- 
tion of  ancient  private  rights  of  the  subject.' 

The  years  that  immediately  followed  the  granting  of 
Magna  Charta  were  years  of  struggle  between  king  and 
people  over  its  principles,  —  a  struggle  marked  by  varia- 
tion of  fortune  for  one  side  and  the  other,  but  result- 
ing, on  the  whole,  in  steady  loss  to  the  crown.  Henry 
III.  saw  the  Barons'  War  and  the  definite  rise  of  parlia- 
mentary institutions.  Parliament,  fully  matured  under 
the  great  Edward,  attained,  in  the  early  days  of  Richard 
II.,  as  we  have  seen,  the  executive  control  of  the  nation. 
And  Richard's  later  assertion  of  irresponsible  authority 
was  answered  by  his  deposition,  and  the  setting  up  of 
the  Lancastrian  dynasty  by  act  of  Parliament, — an  act 
which  marked  the  predominance  of  the  legislature  over 
the  kingship. 

But  the  Wars  of  the  Roses  created  or  signalized  a 
genuine  royalist  reaction.  Their  sanguinary  progress 
brought  about  the  destruction  of  the  ancient  nobility. 
And  with  the  destruction  of  the  nobility,  the  power  of 

1  M.  Glasson  says :  "  La  Grande  Charte  est  un  Contrat,  mais 
qui  se  rapproche  du  traite  passe  entre  deux  nations."  —  Hist,  dii  Dr. 
et  des  Inst,  de  rAvgl.,  III.  52.  In  commenting  on  the  "  Constitution 
Anglaise,''  M.  Boutmy  remarks:  "Les  pactes  sont  au  nombre  de 
trois:  la  grande  charte  (1215).  .  .  .  Le  caractere  de  cet  acte  est 
aise  \  detinir.  Ce  n'est  pas  precisement  un  traite,  puisqu'il  n'y  a 
pas  ici  deux  souverainetes  legitimes  ni  deux  nations  en  presence ; 
ce  n'est  pas  non  plus  une  loi;  elle  serait  entachee  d'irregularite  et 
de  violence;  c'est  un  compromis  ou  un  pacte."  —  Eludes  de  Droit 
Constitulioiitiel,  39,  41. 


132  SOURCES   OF  THE    CONSTITUTION.        chap. 

the  Commons  became  insufficient  to  cope  with  the  power 
of  the  crown.  Under  the  House  of  Lancaster  parUa- 
mentary  principles  had  been  prematurely  asserted,  and 
the  House  of  York  in  ascending  the  throne,  renewed 
and  strengthened  the  arbitrary  rule  of  the  sovereign,  and 
prepared  the  way  for  the  Tudors  and  the  Stuarts. 

Indeed,  during  the  Plantagenet  period,  which  thus 
ended  with  the  Yorkists,  the  royal  powers  had  passed 
through'  a  steadily  formative  process.  The  Plantagenet 
kings  were  at  the  head  of  the  whole  administrative  sys- 
tem of  the  nation,  and  personally  took  part  in  all  state 
business.  They  issued  ordinances  having  much  of  the 
force  of  legislation.  They  personally  heard  cases  and  cen- 
tralized judicature  in  their  hands  through  national  judges 
appointed  by  and  representing  them.  They  levied  taxes 
in  a  variety  of  forms  by  their  own  will.  When  the  parlia- 
mentary system  was  finally  settled,  they  held  an  essential 
relation  to  its  operation;  and  parliamentary  acts  became 
law  by  passing  from  their  hands  to  the  statute  book,  or 
might  be  vetoed  altogether.  Their  right  of  summoning 
sessions  of  Parliament  was  unquestioned,  and  with  it  the 
right  of  adjourning,  proroguing  and  dissolving.  They 
even  moulded,  in  some  degree,  the  internal  constitution 
of  Parliament,  —  the  House  of  Lords  being  composed  of 
members  mediately  or  immediately  constituted  such  by 
the  crown  ;  the  membership  of  the  Commons  also  feeling 
their  influence,  by  means  of  election  writs  and  otherwise.^ 

'  "  In  no  part  of  the  constitutional  fabric  was   more  authority 
left  to  the  king,  and  in  none  was  less  interference  attempted  by 


V.  THE   EXGL/SH  EXECUTIVE.  133 

Nevertheless  the  kingship,  which  under  the  Conqueror 
had  been  absolute  in  fact  without  quite  ignoring  old 
constitutional  limitations  in  theory,  gradually  became 
under  the  Plantagenets,  limited  in  fact  by  the  reasser- 
tion  of  the  ancient  rights  of  the  legislature,  though 
retaining  much  of  absolutism  in  theory. 

A  royalist  philosophy  arose  into  formidable  influence. 
Every  successful  affirmation  of  popular  rights  was  ac- 
companied by  an  advance  of  royal  assumptions.  Every 
assertion  of  the  national  will  was  met  by  a  counter-asser- 
tion of  royal  privilege,  the  indefinite  limit  of  prerogative 
being  more  and  more  indefinitely  exaggerated.  Clerical 
writers  insisted  upon  the  religious  duty  of  obedience, 
and  legal  writers  elaborated  doctrines  nearly  akin  to 
those  of  divine  right,  and  surrounded  them  with  theories 
of  allegiance,  and  of  treason,  of  oaths  of  fealty,  and  acts 
of  homage.  A  sense  of  personal  loyalty  to  the  sover- 
eign slowly  arose.  A  claim  of  legitimacy  —  associated 
in  men's  minds  with  the  thought  of  land-tenure  —  also 
came  to  the  front ;    and  out  of  it  grew  the  idea  that  a 

the  Parliament,  than  in  the  constitution  of  Parliament  itself.  .  .  . 
The  king  retained  the  right  of  summoning  the  Estates  whenever 
and  wherever  he  chose;  he  could,  without  consulting  the  mag- 
nates, add  such  persons  as  he  pleased  to  the  permanent  number  of 
peers,  and  he  might,  no  doubt,  with  very  little  trouble  and  with 
no  sacrifice  of  popularity,  have  increased  or  diminished  the  num- 
ber of  members  of  the  House  of  Commons  by  dealing  with  the 
sheriffs.  On  those  points  occasional  contests  turned,  but  they 
scarcely  ever,  as  was  the  case  in  later  reigns,  came  into  the  fore- 
ground as  leading  constitutional  questions."  —  Stubbs,  Constitutional 
History  of  England,  II.  666. 


134  SOURCES   OF   THE    CONSTITUTION.        chap. 

kingdom  is  a  king's  personal  heritage  by  primogeni- 
ture, by  a  riglit  essentially  the  same  as  that  of  a  lord  to 
patrimonial  estates.  It  was  upon  such  an  idea,  not- 
withstanding the  immemorial  usage  of  election  to  the 
crown,  that  the  House  of  York  based  its  claim  to  reign. 
Referring  to  this  royalist  philosophy  and  its  results. 
Bishop  Stubbs  well  remarks :  "  The  ideal  king  could 
do  all  things,  but  without  the  counsel  and  consent  of 
the  Estates  he  could  do  nothing.  The  exaltation  of  the 
ideal  king  was  the  exaltation  of  the  law  that  stood 
behind  him,  of  the  strength  and  majesty  of  the  state 
which  he  impersonated.  It  could  be  no  wonder  if  now 
and  then  a  king  should  mistake  the  theory  for  the  truth 
of  fact,  and,  like  Richard  II.,  should  attempt  to  put  life 
in  the  splendid  phantom.  And  when  the  king  arose 
who  had  the  will  and  the  power,  the  nation  had  gone 
on  so  long  believing  in  the  theory,  that  they  found  no 
weapons  to  resist  the  fact,  until  the  factitious  theory  of 
the  Stuart's  raised  the  ghost  of  mediaeval  absolutism,  to  be 
laid  then  and  forever."^ 

1  Constitutional  History  of  England,  III.  561.  "  The  strength  of 
the  crown  at  the  close  of  the  Middle  Ages  lay  in  the  permanence 
of  the  idea  of  royalty,  the  wealth  of  the  king,  the  legal  definitions 
and  theory  of  the  supreme  power;  its  position  was  enhanced  by  the 
suicide  of  the  baronage,  the  personal  qualities  of  the  new  dynasty 
[the  Tudor],  the  political  weariness  of  the  nation,  and  the  altered 
position  of  the  kings  in  the  great  states  of  Europe.  The  place  of 
Henry  VII.  cannot  be  understood  without  reference  to  the  events 
which,  in  France,  Spain,  and  Germany,  were  consolidating  great 
dynastic  monarchies,  in  the  activity  of  which  the  nations  themselves 
had  little  independent  participation."  —  Ibid.  III.  562. 


V.  THE   ENGLISH  EXECUTIVE.  135 

The  reaction  in  favour  of  royal  rule  which  began,  as 
just  stated,  under  the  Yorkist  dynasty,  culminated  under 
the  Tudors,  and  in  the  reign  of  Henry  VIII.  At  the 
Reformation,  Henry  possessed  well-nigh  resistless  civil 
power,  to  which  he  added  a  new  relationship  to  the 
national  Church  ;  attempting  control  over  the  very  minds 
and  consciences  of  men.  And  though  he  conformed 
outwardly  to  constitutional  usage,  his  Parliament  was  the 
merest  tool  for  the  execution  of  the  royal  wishes.    Edward 

VI.  and  ^lary,  in  matters  of  civil  administration,  followed 
in  the  steps  of  their  father ;  and  Elizabeth,  wisely  exer- 
cising it  for  the  good  of  the  nation,  held  power  as  auto- 
cratic. 

But  the  tide  had  reached  a  height,  and  needs  must 
ebb.  James  I.  experienced  the  beginnings  of  a  counter- 
movement  in  the  awakening  of  the  spirit  of  parliamentary 
independence  that  had  slumbered  since  the  fall  of  the 
House  of  Lancaster.  He  met  this  movement  by  enunci- 
ating a  most  monstrous  theory  of  divine  right  to  absolute 
and  irresponsible  sovereignty,  and  forced  into  activity 
the  old  opposition  to  the  crown  in  the  new  and  dangerous 
form  of  political  Puritanism.  He  was  succeeded  in  his 
contest  with  Parliament  by  a  son  who  surrendered  life 
itself  for  the  royalist  doctrines,  and  saw  the  downfall  of 
the  throne,  and  of  the  ancient  Constitution  with  it,  in 
one  common  wreck.  And  a  final  reaffirmation  of  ultra- 
royal  claims  came  in  with  the  Restoration,  —  Charles  H. 
and  James  H.  erecting  slowly,  cautiously,  and  with  pro- 
fessed  respect   for   parliamentary   institutions,    the    old 


136  SOURCES    OF  THE    CONSTITUTION.        chap. 

structure  of  despotic  government,  only  to  bring  about  the 
expulsion  of  their  dynasty,  and  the  Revolution  of  1688. 

The  Revolution  "  finally  decided,"  remarks  Lord  Ma- 
caula}',  "  the  great  question  whether  the  popular  element 
which  had,  ever  since  the  age  of  Fitz  Walter  and  De 
Montfort,  been  found  in  the  English  polity,  should  be 
destroyed  by  the  monarchical  element,  or  should  be 
suffered  to  develop  itself  freely,  and  to  become  dominant. 
The  strife  between  the  two  principles  had  been  long, 
fierce,  and  doubtful.  .  .  .  The  king-at-arms  who  pro- 
claimed William  and  Mary  before  W'hitehall  Gate  did  in 
truth  announce  that  this  great  struggle  was  over ;  that 
there  was  an  entire  union  between  the  throne  and 
Parliament  .  .  . ;  that  the  ancient  laws  by  which  the 
prerogative  was  bounded  would  henceforth  be  held  as 
sacred  as  the  prerogative  itself,  and  would  be  followed 
out  in  their  consequences ;  that  the  executive  adminis- 
tration would  be  conducted  in  conformity  with  the  sense 
of  the  representatives  of  the  nation."  ^ 

Though  the  prerogatives  of  the  monarchy  suffered 
no  legal  diminution  at  the  Revolution  of  1688,  but, 
as  constitutional  writers  affirm,  were  after  that  event 
what  they  had  been  before,  yet  a  code  of  unwritten 
law  began  to  come  into  existence,  that  in  many  ways 
modified  and  neutralized  the  operation  of  the  written 
law  and  of  former  constitutional  usage.  The  English 
Constitution  has  since  grown  to  be  very  largely  a  system 
of  unconventional  and  political  rules  and   theories.     In 

^  History  of  England.,  II,  668. 


V.  THE   ENGLISH  EXECUTIVE.  137 

outward  appearance  the  Revolution  of  1688  merely 
transferred  the  sovereignty  from  James  II.  to  William  and 
Mary.  In  reality  it  transferred  the  sovereignty  from  the 
king  to  the  House  of  Commons.  For  from  the  moment 
when  the  sole  right  of  the  House  to  tax  the  nation 
was  established  by  the  Bill  of  Rights,  and  when  the 
practice  was  settled  of  voting  only  annual  supplies 
to  the  crown,  the  Commons  became  the  chief  power  in 
the  kingdom.  It  was  impossible  permanently  to  suspend 
the  sessions  of  Parliament,  or  to  offer  serious  opposition 
to  its  will,  when  either  course  must  end  in  leaving  the 
government  without  money,  in  breaking  up  the  military 
and  naval  forces,  and  in  rendering  the  public  service 
impossible.^ 

The  personal  influence  of  the  king  was  weakened 
at  the  Revolution,  and  has  gone  on  declining  since. 
The  deposition  of  a  monarch  who  represented  legitimist 
descent,  the  election  of  an  outsider  in  the  person 
of  William  of  Orange,  and  the  final  seating  of  the 
House  of  Hanover  by  act  of  Parliament,  necessarily 
put  an  end  to  much  of  the  old  philosophy.  Disputed 
succession,  together  with  the  lingering  of  a  hostile  legiti- 
mist party,  forced  the  sovereigns  whom  Parliament  had 
set  up,  to  rely  upon  parliamentary  support,  and  com- 
pelled their  acceptance  of  a  great  degree  of  parliamentary 
control. 

In  a  new  and  unexpected  quarter  arose  the  force 
that   was    eventually  to   absorb   what   remained   of  the 

1  Green,  Short  History  of  the  Eiiglhk  People,  680. 


138  SOURCES   OF   THE    CONSTITUTION.        chap. 

sovereign  power.  During  the  reign  of  Charles  II.  the 
king's  inner  circle  of  advisers  within  the  Privy  Council 
came  to  be  called  the  "  Cabinet  "  ;  and  after  the  Revolu- 
tion, through  a  suggestion  of  Lord  Sunderland  to  William 
of  Orange,  the  members  of  this  Cabinet  came  to  be 
selected  from  the  political  party  in  majority  in  the 
House  of  Commons.'  The  first  George's  ignorance  of 
the  English  language,  and  his  indifference  to  English 
political  affairs,  brought  about  a  custom  of  holding 
Cabinet  sessions  without  the  presence  of  the  king.  In 
his  reign,  and  that  of  George  II.,  the  Cabinet  exercised, 
for  the  first  time,  the  prerogatives  of  royalty,  and  the 
sovereign  almost  ceased  to  influence  active  government. 

1  "The  Whigs,  who  had  secured  the  crown  to  WilHam  III.,  ex- 
pected that  he  would  choose  his  ministers  solely  from  their  ranks. 
But  the  king  was  strongly  opposed  to  government  by  party.  He 
wished  to  retain  the  chief  directing  power  himself  and  to  secure  the 
support  of  a  united  Parliament  in  carrying  out  his  continental  policy 
in  opposition  to  Louis  XIV.  of  France.  Accordingly,  down  to  the 
year  1693,  ^^  distributed  the  chief  offices  in  the  government  about 
equally  between  the  two  parties.  But  this  policy,  while  it  main- 
tained the  chief  efficient  power  in  the  hands  of  the  king,  not  only 
failed  to  secure  unanimity  among  the  various  ministers  of  the  crown, 
but  even  allowed  of  open  hostility  between  them,  as  well  in  the  dis- 
charge of  their  executive  duties  as  in  the  discussions  in  Parliament. 
The  inconvenience  of  this  state  of  things  was  so  great  that  at  length, 
between  1693  and  1696,  acting  on  the  advice  of  Robert,  Earl  of 
Sunderland,  William  abandoned  the  neutral  position  which  he  had 
hitherto  maintained  between  the  two  parties,  and  entrusted  all  the 
chief  administrative  offices  to  the  Whigs,  who  commanded  a  major- 
ity in  the  House  of  Commons."  —  Taswell-Langmead,  English  Con- 
stitutional History,  681. 


V.  THE  ENGLISH  EXECUTIVE.  139 

"Ministers,"  exclaimed  George  II.,  "are  the  king  in  this 
country."  ^ 

Under  this  new  system,  the  government  was  adminis- 
tered in  all  its  departments  by  ministers  responsible  to 
Parliament  for  every  act  of  official  policy,  without  whose 
advice  no  act  could  be  performed.  These  ministers 
might  be  dismissed  for  incapacity  or  failure,  and  im- 
peached for  political  crimes ;  and  they  resigned  when 
their  advice  was  opposed  by  the  crown,  or  their  pro- 
ceedings disapproved  by  Parliament.  \Vith  his  Cabinet 
thus  responsible,  "the  king  could  do  no  wrong."  The 
Stuarts  had  exercised  power  personally  and  had  been 
held  responsible  in  person.  Their  family  had  been 
driven  altogether  from  the  throne.  But  now,  if  the 
royal  prerogative  was  stretched,  the  ministers  were  dealt 
Avith  rather  than  the  monarch.  If  a  political  crisis  oc- 
curred, instead  of  a  revolution  there  was  only  a  change 

^  Lord  Mahon,  His/oiy  of  Englajtd,  III.  2S0.  "With  George  I. 
and  George  II.  Hanoverian  politics  had  occupied  the  first  place  in 
their  thoughts  and  affections.  Of  English  politics,  English  society, 
and  even  the  English  language,  they  knew  little.  The  troublesome 
energies  of  Parliament  were  an  enigma  to  them;  and  they  cheerfully 
acquiesced  in  the  ascendency  of  able  ministers  who  had  suppressed 
rebellions  and  crushed  pretenders  to  their  crown,  —  who  had  tri- 
umphed over  parliamentary  opposition  and  had  borne  all  the  burden 
of  the  government.  Left  to  the  indulgence  of  their  personal  tastes, 
occupied  by  frequent  visits  to  the  land  of  their  birth,  .  .  .  they  were 
not  anxious  to  engage,  more  than  was  necessary,  in  the  turbulent 
contests  of  a  constitutional  government.  Having  lent  their  name 
and  authority  to  competent  ministers,  they  acted  upon  their  advice 
and  aided  them  by  all  the  means  at  the  disposal  of  the  court."  — 
May,  Co7tstitiilio)ial  History  of  England,  I.  20. 


140  SOURCES   OF   THE    CONSTITUTION.        chap. 

of  Cabinet.  In  the  place  of  dangerous  struggles 
between  Parliament  and  the  crown,  there  was  only  the 
contest  between  rival  parties  to  obtain  a  parliamentary 
majority ;  and  the  party  possessing  the  greater  number 
of  votes  wielded  all  the  power  of  the  nation.  Con- 
sec^uently,  upon  the  ministry,  for  the  time  being,  rested 
the  entire  burden  of  public  affairs.  The  monarchy  was 
relieved  of  its  cares  and  perils  by  ministers,  who  appro- 
priated nearly  all  its  authority.  The  king  reigned,  but 
his  ministers  governed.^ 

George  III.  energetically  opposed  this  form  of  en- 
croachment, and  reasserted  the  agency  of  the  sovereign 
as  a  personal  executive.  But  the  new  cabinet  system 
was  too  far  under  way  to  be  more  than  temporarily 
checked,  and  has  attained  in  our  day  an  undisputed 
ascendency.  The  power  of  the  crown,  as  exercised  by 
the  Cabinet,  has  now  greatly  increased,  but  the  personal 
influence  of  the  wearer  of  the  crown  in  matters  of 
government    has    greatly    diminished.-     The   power    of 

^  May,  Constitutional  History  of  Englajid,  I.  ig,  20.  Mr.  Bage- 
hot  describes  the  Cabinet  as  "  a  combining  committee  —  &  hyphen 
which  joins,  a  buckle  which  fastens,  the  legislative  part  of  the  state 
to  the  executive  part  of  the  state.  In  its  origin  it  belongs  to  the 
one,  in  its  functions  it  belongs  to  the  other."  —  English  Constitu- 
tion, 14. 

2  It  would  be  a  mistake  to  say,  as  many  have  said,  that  the  per- 
sonal influence  of  the  monarch  is  practically  gone.  "There  is  not 
a  doubt  that  the  aggregate  of  direct  influence  nominally  exercised 
by  the  sovereign  upon  the  counsels  and  proceedings  of  her  ministers 
is  considerable  in  amount,  tends  to  permanence  and  solidity  of  ac- 
tion, and  confers  much  benefit  on  the  country,  without  in  the  small- 


V.  THE   ENGLISH  EXECUTIVE.  141 

Parliament  has  also  increased,  but  is  mainly  directed 
by  the  ministry.  English  government  has  ceased  to  be, 
strictly  speaking,  either  a  royal  or  a  parliamentary 
government,  and  has  become  a  cabinet  government, — 
blending  the  executive  and  legislative,  by  taking  au- 
thority derived  from  the  ancient  representatives  of  each, 
and  exercising  it  through  a  body  having  relation  to  both. 
But  although  the  interruption  was  only  temporary, 
George  III.  did  for  an  interval,  and  in  some  degree, 
break  through  this  system ;  or  rather  he  succeeded 
in  demonstrating  that  it  was  not  complete,  or  fully 
established.  He  had  been  trained  from  youth  in  lofty 
conceptions  of  royal  office.  "George,  be  king,"  was 
the  repeated  admonition  of  his  ambitious  mother,^  and 
her  exultation  at  a  triumph  over  popular  opposition 
during  the  ministry  of  Lord  Bute,  found  expression 
in  the  characteristic   words,   "  Now   my  son  is  king  of 

est  degree  relieving  the  advisers  of  the  crown  from  their  undivided 
responsibility."  —  Gladstone,  Gleanings  of  Past  Yea?-s,  I.  42.  As 
these  words  apply  to  Queen  Victoria,  who  is  sometimes  characterized, 
in  a  cabinet  sense,  as  the  most  constitutional  sovereign  who  has 
ever  reigned  over  England,  and  as  they  proceed  from  a  personage 
who  has  been  in  turn  a  member  of  both  political  parties  in  England, 
and  has  held  a  place  in  several  cabinets  and  risen  to  the  position  of 
premier,  they  must  be  accorded  historical  weight.  They  are  not, 
however,  needed  to  establish  recognition  of  the  truth  that  the  Brit- 
ish sovereign  is  still  a  real  factor  in  British  administration  and  a 
most  useful  one.  There  are  those  who  think  that  public  interests 
would  be  better  off  if  the  personal  influence  of  the  monarch  were 
greater,  and  the  influence  of  mere  party  government  less,  than  has 
come  to  be  the  case. 

^  Earl  of  Albemarle's  Rockingham  Memoirs,  I.  3. 


142  SOURCES   OF   THE    CONSTITUTION.        chap. 

England."  ^  He  was  determined  from  the  outset  to 
reassert  the  personal  power  of  the  sovereign,  which  had 
almost  disappeared  from  the  sphere  of  government  since 
the  accession  of  the  House  of  Hanover,  and  to  rule 
freed  from  the  trammels  of  ministers  and  parties,  for  the 
people,  indeed,  but  not  by  the  people.  "  The  king 
desired,"  observes  May,  "to  undertake  personally  the 
chief  administration  of  public  affairs,  to  direct  the  policy 
of  his  ministers,  and  himself  to  distribute  the  patronage 
of  the  crown.  .  .  .  His  courtiers  represented  that  he 
was  enthralled  by  the  dominant  party,  which  had  become 
superior  to  the  throne  itself,  and  that,  in  order  to  recover 
his  just  prerogative,  it  was  necessary  to  break  up  the 
combination.  But  what  was  this  in  effect,  but  to  assert 
that  the  king  should  now  be  his  own  minister?  that  min- 
isters should  be  chosen,  not  because  they  had  the  con- 
fidence of  Parliament  and  the  country,  but  because 
they  were  agreeable  to  himself,  and  willing  to  carry  out 
his  policy?  And  this  was  the  true  object  of  the  king.  .  .  . 
When  ministers  not  of  his  own  choice  were  in  office,  he 
plotted  against  them  and  overthrew  them,  and  when  he 
had  succeeded  in  establishing  his  friends  in  office,  he  en- 

^  Walpole,  Memoii-s,  I.  233.  George  III.  was  the  first  English 
king  of  the  House  of  Hanover,  and  gloried  in  the  fact  of  his  being 
English.  With  his  own  hand  he  placed  in  the  draft  of  his  first 
speech  to  Parliament,  the  words,  "  Born  and  educated  in  this 
country,  I  glory  in  the  name  of  Briton."  —  Rose,  Correspondence, 
H.  189.  (Diary.)  The  traditions  of  the  old  English  kingship 
before  the  days  of  George  I.  and  George  H.  influenced  him  power- 
fully. 


V.  THE  ENGLISH  EXECUTIVE.  143 

forced  upon  them  the  adoption  of  his  own  poHcy." ' 
And  this  writer  approximately  states  the  issue  in  saying 
that  His  Majesty  reverted  "to  a  pohcy  under  which 
kings  had  governed,  and  ministers  had  executed  their 
orders."  - 

It  was  in  Lord  North's  ministry,  from  1770  to  17S2, 
that  the  king  attained  his  greatest  personal  power.  And 
this,  let  it  be  noted,  was  the  period  of  the  American 
war,  and  ended  just  previous  to  the  formation  of  the 
Constitution  of  the  United  States.  His  personal  gov- 
ernment made  a  profound  impression  upon  the  Ameri- 
cans, and  has  left  permanent  trace  in  the  constitutional 
structure  of  the  American  executive.  Lord  North  being 
favourable  to  prerogative  and  warmly  attached  to  his 
sovereign,  subordinated  his  own  judgment  to  that  of  the 
king,  and  steadily  executed  the  royal  will,  instead  of 
enforcing  his  own  and  that  of  the  ministry.  Notably, 
he  continued  the  American  war  because  George  HL 
would  not  consent  to  another  course,  although,  as  he 
told  the  king  in  1779,  "he  held  in  his  heart,  and  had 
held  for  three  years  past,"  that  "  it  must  end  in  the  ruin 

^  May,  Constitutional  History  of  England,  I.  23,  26. 

2  Ibid.  I.  26.  In  debating  the  address  at  the  opening  of  Parlia- 
ment, Nov.  25th,  1 779,  Fox  declared,  that  "  he  saw  very  early  indeed, 
in  the  present  reign,  the  plan  of  government  which  had  been  laid 
down,  and  had  since  been  invariably  pursued  in  every  department. 
It  was  not  the  mere  rumour  of  the  streets  that  the  king  was  his  own 
minister;  the  fatal  truth  was  evident,  and  had  made  itself  evident 
in  every  circumstance  of  the  war  carried  on  against  America  and 
the  West  Indies."  —  Parliamentary  History,  XX.  11 20. 


144  SOURCES   OF   THE    CONSTITUTION,     chap.  v. 

of  His  Majesty  and  the  country." '  The  sovereign 
himself  directed  the  minister  in  all  important  matters 
of  foreign  and  domestic  policy. 

In  1780  the  House  of  Commons  adopted  the  famous 
resolution  affirming  "  that  the  influence  of  the  crown  has 
increased,  is  increasing,  and  ought  to  be  diminished."  - 
But  it  was  not  until  two  years  later,  and  after  repeated 
motions  of  lack  of  confidence  in  the  government,  that 
Lord  North  resigned,  and  was  succeeded  first  by  Lord 
Rockingham  and  then  by  Lord  Shelburne.''  The  latter, 
in  1783,  concluded  the  Peace  of  Versailles,  by  which 
the  king  acknowledged  the  independence  of  the  United 
States.  In  this  latter  year,  the  younger  Pitt  became 
Prime  Minister ;  and  under  his  able  administration  the 
ascendency  of  the  crown  was  maintained  for  nearly  half 
a  century. 

Such  was  the  position  of  the  English  executive  at  the 
time  of  the  assembling  of  the  Constitutional  Convention 
at  Philadelphia. 

1  Correspondence  of  George  HI.  luith  Lord  North,  1768,  17S3, 
ed.  Donne. 

-  Cobbitt,  Parliamentary  History,  XXI.  347. 

2  Lord  Shelburne  was  in  sympathy  with  the  king's  view  of  the 
royal  office.  He  would  never  consent,  he  said,  "  that  the  King  of 
England  should  be  a  king  of  the  Mahrattas;  for  among  the  Mah- 
rattas  the  custom  is,  it  seems,  for  a  certain  number  of  great  lords 
to  elect  a  Peishwah,  who  is  thus  the  creature  of  the  aristocracy, 
and  is  vested  with  the  plenitude  of  power,  while  there  is,  in  fact, 
nothing  more  than  a  royal  pageant."  —  Parliamentary  History, 
XXII.  1003. 


CHAPTER  VI. 


THE   AMERICAN   EXECUTIVE. 


THE  derivation  of  the  presidency  from  the  old  king- 
ship took  place  at  a  time  and  under  conditions 
which  assured  the  qualities  of  a  personal  executive,  free 
from  cabinet  control.  In  our  day,  through  the  influence 
of  political  theory,  an  idea  is  very  common  that  the 
English  cabinet  system,  in  the  shape  of  parliamentary 
domination  over  the  sovereign,  has  had  continuous 
existence  since  the  reign  of  William  of  Orange,  except 
as  momentarily  interrupted  by  the  aggression  of  George 
III.  But  contemporaries  of  the  latter  king  had  reason 
to  entertain  a  very  different  idea.  The  continuity  of  the 
cabinet  system  from  early  germs  was  not  apparent  in 
the  days  of  a  monarch  who,  more  or  less  successfully,  set 
it  at  defiance.  As  the  first  really  English  sovereign  of  the 
House  of  Hanover,  he  undertook  to  exercise,  as  far  as  he 
was  able,  the  powers  of  personal  government,  belonging 
from  of  old  to  English  royalty.  And  he  himself  looked 
upon  those  powers  as  having  been  exercised  by  the  kings 
continuously,  except  for  a  brief  interval.  That  exception 
did  not  date  from  the  reign  of  William  III.,  or  of  Queen 
Anne  —  who,  though  possessing  cabinets,  had  undoubt- 

H3 


146  SOURCES   OF   THE   CONSTITUTION.        chap. 

edly  been  personal  executives  —  but  from  the  reigns  of 
the  first  Georges ;  and  it  was  easily  explained  by  the 
non-English  singularities  of  those  two  monarchs.  Nor 
was  the  cabinet  system,  even  in  their  reigns,  all  that  has 
been  claimed.  For  the  plain  truth  is,  that  the  present 
parliamentary  control  through  the  cabinet  rests  upon  no 
written  law,  but  merely  upon  usage ;  and  the  usage  upon 
which  it  rests  became  recognized  and  settled  within 
living  memory,  and  has  had  a  duration  of  scarcely  more 
than  sixty  years. 

Mr.  Bryce  very  fairly  says  of  this  modern  English 
system :  "  We  are  prone  to  forget  how  recent  it  is. 
People  commonly  date  it  from  the  reign  of  William  III., 
but  it  worked  very  irregularly  till  the  Hanoverian  kings 
came  to  the  throne,  and  even  then  it  at  first  worked  by 
means  of  a  monstrous  system  of  bribery  and  place-mon- 
gering.  In  the  days  of  George  III.,  the  personal  power 
of  the  crown  for  awhile  revived,  and  corruption  dechned. 
The  executive  head  of  the  state  was,  during  the  latter 
decades  of  the  century,  a  factor  apart  from  its  ministers. 
They  were  not  then,  as  now,  a  mere  committee  of  Parlia- 
ment, but  rather  a  compromise  between  the  king's  will 
and  the  will  of  the  parliamentary  majority.  They  deemed 
and  declared  themselves  to  owe  a  duty  to  the  king,  con- 
flicting with,  sometimes  overriding,  their  duty  to  Parlia- 
ment. Those  phrases  of  abasement  before  the  crown, 
which,  when  now  employed  by  prime  ministers,  amuse 
us  by  their  remoteness  from  the  realities  of  the  case,  then 
expressed  realities.      In   1737,  when  the   Constitutional 


VI.  THE  AMERICAN  EXECUTIVE.  147 

Convention  met  at  Philadelphia,  the  cabinet  system  of 
government  was  in  England  still  immature.  It  was  so 
immature  that  its  true  nature  had  not  been  perceived."  ^ 
Popular  feeling  among  Americans  at  the  close  of  the 
Revolution  was  opposed  to  kingship,  —  an  opposition 
largely  due  to  the  fact  that  the  struggle  had  been  forced 
upon  them  by  their  sovereign  in  person.  The  sense  of 
loyalty  which  previously  had  so  real  an  existence  was 
forgotten   in  this  new  antipathy.-     One   of  the  gravest 

1  American  Commonwealth,  I.  272,  273.  "  It  is  not  easy  to  say 
when  the  principle  of  the  absolute  dependence  of  ministers  on  a  par- 
liamentary majority,  without  regard  to  the  wishes  of  the  crown,  passed 
into  a  settled  doctrine.  Needless  to  say,  that  it  has  received  no 
formally  legal  recognition,  but  is  merely  usage.  The  long  coinci- 
dence, during  the  dominance  of  Pitt  and  his  Tory  successors,  down 
till  1827,  of  the  wishes  and  interests  of  the  crown  with  those  of  the 
parliamentary  majority,  prevented  the  question  from  arising  in  a 
practical  shape."  — IbiJ.  I.  273,  n.  4.  He  quotes  Mr.  Canning,  who, 
even  in  1827,  writes  to  J.  W.  Croker:  "  Am  I  to  understand,  then, 
that  you  consider  the  king  [George  IV.]  as  completely  in  the  hands 
of  the  Tory  aristocracy  as  his  father,  or  rather  as  George  II.  was  in 
the  hands  of  the  Whigs?  If  so,  George  III.  reigned,  and  Mr.  Pitt 
—  both  father  and  son  —  administered  the  government  in  vain.  I 
have  a  better  opinion  of  the  real  vigour  of  the  crown  when  it  chooses 
to  put  forth  its  own  strength,  and  I  am  not  without  some  reliance 
on  the  body  of  the  people  !  " —  Croker  Correspondence,  I.  368. 

-  Yet  there  was  a  considerable  monarchical  party  in  America. 
"  The  machinery  of  government  under  the  Articles  of  Confederation 
was  so  defective,  weak,  and  ineffectual  that  men,  wise  men,  true  and 
loyal  Americans  .  .  .  demanded  a  government  that  would  revive 
from  prostration  the  public  credit  and  faith  of  the  nation,  that 
would  provide  for  the  payment  of  interest  on  the  public  debt;  they 
felt  the  need  of  a  government  with  a  strong  arm,  an  elective  mon- 
archy." —  Straus,  Republican  Form  of  Government^  132.   The  move- 


148  SOURCES   OF   THE    CONSTITUTION.        chap. 

difificulties,  therefore,  which  confronted  the  framers  of 
the  Constitution,  was  the  question  of  how  to  fill  the 
vacant  place  in  the  fabric  of  government  occupied  in 
colonial  times  by  the  sovereign,  and  in  such  a  way  as 
to  secure  headship  for  the  nation  and  efficiency  in 
executive  functions.  It  was  admitted  in  debate  during 
the  Convention,  that  the  people  would  not  endure  *the 
setting  up  of  a  king.  Yet,  as  by  irresistible  instinct, 
they  put  much  of  the    royal   power   back  again   in  its 

ment  of  the  troops  at  Newburg,  at  the  close  of  the  war,  to  make 
Washington  a  king,  is  in  point.  The  words  of  the  document  pre- 
sented by  Colonel  Nicola  showed  the  need  of  settling  a  strong  form 
of  government,  and  summed  up  by  declaring  that  a  republican 
government  was  the  most  unstable  and  insecure,  and  a  constitu- 
tional monarchy  like  that  of  England,  the  strongest  and  safest.  It 
concluded  by  saying:  "Owing  to  the  prejudices  of  the  people  it 
might  not  at  first  be  prudent  to  assume  the  title  of  royalty,  but 
if  all  other  things  were  adjusted,  we  believe  strong  arguments 
might  be  produced  for  admitting  the  title  of  king."  Straus  re- 
marks:  "This  monarchical  party  spirit  was  so  strong,  that  it  sur- 
vived even  after  the  adoption  of  the  Constitution  until  the  election 
of  Jefferson  as  President,  who  refers  to  it  in  his  inaugural  address." 
—  Ibid.  134.  Jefferson  writes  in  the  introduction  of  "Anas": 
"  The  contests  of  that  day  were  contests  of  principle  between  the 
advocates  of  republican  and  those  of  kingly  government."  See 
also  the  letter  of  James  Monroe  to  Andrew  Jackson,  December, 
1816,  giving  his  recollections  of  the  monarchical  tendencies  which 
were  shown  by  certain  leaders  of  the  Federal  party  both  before 
and  after  the  Constitutional  Convention.  He  says:  "  Many  of  the 
circumstances  on  which  my  opinion  is  founded,  took  place  in 
debate  and  in  society,  and  therefore  find  no  place  in  any  public 
document.  I  am  satisfied,  however,  that  sufficient  proof  exists, 
founded  on  facts  and  opinions  of  distinguished  individuals,  which 
became  public,  to  justify  that  which  I  had  formed." 


VI.  THE  AMERICAN  EXECUTIVE.  149 

place  at  the  apex  of  government,  in  the  form  of  a  colonial 
governor  or  president  made  national.  And  as  the  people 
were  locally  accustomed  to  this  substitute  for  royalty, 
they    accepted    the     arrangement    without     resistance.' 

1 "  WTien  the  subject  was  first  considered  in  the  Convention, 
Wilson  moved  that  a  '  national  executive,  to  consist  of  a  single 
person,  be  instituted.'  But  in  so  doing,  he  was  not,  he  expressly 
said, '  governed  by  the  British  model,  which  was  inapplicable  to  the 
situation  in  this  country.  .  .  .'  Later,  in  answer,  probably,  to  those 
who  saw  in  the  single  executive  too  close  an  approximation  to  the 
King  of  England,  he  urged,  that  '  all  the  thirteen  States,  though 
agreeing  in  scarcely  any  other  instance,  agree  in  placing  a  single 
magistrate  at  the  head  of  the  government.'  The  fear  was  expressed 
that  the  people  also  would  immediately  see  the  resemblance  be- 
tween a  single  executive  and  a  king,  —  a  person  then  in  little 
favour,  and  that  such  a  feature  might  cause  a  summary  rejection  of 
the  whole  proposed  plan  of  union.  The  careful  attempt  in  the  Feder- 
alist [Xos.  67  and  69]  to  prove  that  no  very  close  analogy  did  in 
reality  exist,  shows  that  the  fear  was  not  without  foundation. 
Nevertheless,  in  spite  of  this  and  other  objections,  the  question 
whether  or  not  the  executive  power  should  be  intrusted  to  a  single 
person,  was,  after  one  postponement,  settled  in  the  affirmative  by 
a  vote  of  seven  to  three.  The  question  was  never  again  seriously 
opened.  The  unanimity  on  this  important  point  is  very  striking, 
in  view  of  the  prolonged  discussion  of  many  comparatively  im- 
important  clauses.  The  reason  for  this  exceptionally  speedy 
agreement  is  to  be  found  partly  in  the  obvious  inconveniences  of 
a  plural  executive,  the  evil  results  of  which  had  so  palpably  shown 
themselves  in  the  history  of  Holland.  A  more  efficient  cause, 
however,  than  the  experience  of  European  states,  is  to  be  found 
in  the  familiarit)'  of  the  members  with  the  single  executive,  not  so 
much  of  Elngland  as  of  the  colonies,  and  more  particularly  of  the 
States."  "  The  experience  of  Holland,  which  was  cited  in  the  Con- 
vention, probably  had  its  influence  in  preventing  the  adoption  of 
a  similar  expedient  in  our  case."  — American  Academy  Publications, 
No.  9,  pp.  221,  222,  and  n.  4. 


150  SOURCES   OF   THE    CONSTITUTION.        chap. 

While  it  may  be  strange  to  contemplate  the  fact  that 
thus,  after  all,  the  republican  presidency  is  developed 
from  a  kingship,  it  will  become  apparent  upon  the 
slightest  examination,  that  the  President  of  to-day  gov- 
erns, in  the  main,  with  powers  exercised  before  him  by 
the  colonial  governors  as  the  king's  deputies,  precisely 
because  they  were  the  very  powers  exercised  at  home 
by  the  king  himself,  —  or,  in  other  words,  that  identical 
powers  of  the  historic  executive  of  the  English  race 
are  still  put  in  operation  by  the  American  executive.^ 
And  as  the  presidential  office  comes  from  the  ancient 
kingship  indirectly,  through  the  governorship,  and  also 
directly,  it  is  hardly  remarkable,  when  contemporaneous 
circumstances  both  in  England  and  America  are  borne 
in  mind,  that  it  is  that  of  an  executive  independent 
of  the  legislature,  the  director  of  his  own  cabinet,  and 
the  veritable  administrator  of  the  nation,  -  -  an  executive 
more  nearly  resembling  the  old  type  of  the  kingship 
than,  save  in  outward  form  and  pageantry,  the  modem 
weakened  royalty  of  England  resembles  it. 

For  Americans   of  a   hundred  years  ago,  when  they 

1  "  The  governor  of  the  independent  State  succeeded  the  gov- 
ernor of  the  dependent  colony;  and  he,  whether  elected,  or  nominated, 
was  essentially  a  reflected  image  of  the  kingship.  The  governor 
of  the  State  retained  the  position  of  governor  of  the  colony,  with 
such  changes  as  a  republican  system  necessarily  required."  —  Free- 
man, History  of  ike  Federal  Government,  I.  314,  n.  i.  Speaking 
of  the  President's  office,  Professor  Johnson  says :  "  The  name  itself 
had  been  familiar;  Delaware,  New  Hampshire,  Pennsylvania,  and 
South  Carolina  had  used  the  title  of  'president'  instead  of  'gov- 
ernor.' "  —  N'ezu  Princeton  Kevieiv,  September,  1887,  p.  180. 


VI.  THE  AAIEKICAiV  EXECUTIVE.  151 

thought  of  an  executive  at  all,  very  naturally  held  to 
the  old  conception  of  the  nature  and  powers  of  English 
royalty.  During  their  colonial  experience,  the  sover- 
eign's relation  to  affairs  had  been  distinctly  felt,  and 
was  the  chief  political  tie  that  bound  them  to  the  em- 
pire. In  that  time  no  one  was  permitted  to  question, 
nor  seems  to  have  desired  to  question,  that  the  king 
was  king  in  America.  And  notwithstanding  the  ten- 
dency to  democratic  opinion  occasionally  manifesting 
itself,  his  supremacy  was  never  lost  sight  of  until  inde- 
pendence came.  If  it  be  remembered  that  among  the 
monarchs  of  the  period  were  James  I.,  Charles  I.,  Charles 
II.,  James  II.,  and  George  III.,  it  will  be  easy  to  under- 
stand how  a  strong  sense  of  executive  authority  must 
have  been  familiar  to  the  American  mind.  Wilham 
and  Mary,  and  Queen  Anne,  though  not  despotic,  were, 
as  just  noted,  personal  rulers.  And  the  only  exception 
to  the  uniformity  of  this  experience  was,  as  already 
pointed  out,  the  contemptible  one  of  the  first  two 
Georges,  —  more  than  offset  by  the  royal  vigour  of 
George  III. 

The  colonial  governorship  itself  was  of  a  personally 
executive  character.  For  though  the  cabinet  system  is 
generally  found  in  the  present  colonies  of  England, 
not  one  of  the  older  colonies  possessed  it ;  their  local 
institutions  having  been  copied  from  hers  before  its 
invention.^     The  governor's  functions  are  thus  described 

1  Dr.  W.  E.  Griffis,  in  a  pamphlet  —  Influence  of  the  Netherlands 
in  the  Making  of  the  English   Commonwealth  and  the  American 


152  SOURCES   OF   THE    CONSTITUTION.        chap. 

by  Mr.  Justice  Story  :  "  The  king  had  power  to  vest  in 
the  royal  governors  in  the  colonies,  from  time  to  time, 
such  of  his  prerogatives  as  he  should  please ;  such 
as  tlie  power  to  prorogue,  adjourn,  and  dissolve  the 
colonial  assemblies  ;  to  confirm  acts  and  laws,  to  pardon 
offences,  to  act  as  captain  general  of  the  public  forces, 
to  appoint  public  officers,  to  act  as  chancellor  and 
supreme  ordinary,  to  sit  in  the  highest  court  of  appeals 
and  errors,  to  exercise  the  duties  of  vice-admiral,  and 
to  grant  commissions  to  privateers.  These  and  some 
other  prerogatives  of  the  king  were  commonly  exercised 
by  the  royal  governors  without  objection."  ^ 

Republic,  40  —  ventures,  among  many  similar  statements,  the  asser- 
tion that  the  State  governors  and  the  national  President  are  the 
statholders  of  the  States  and  the  United  States.  As  the  governors 
were  officials  created  by  the  charters  granted  to  English  colonies 
by  English  sovereigns,  the  calling  them  statholders,  and  implying 
that  they  had  a  Dutch  beginning,  is  somewhat  ludicrous.  It  is, 
however,  a  fair  example  of  the  excess  to  which  writers  go,  who  try 
too  hard  to  discover  a  Dutch  origin  for  American  institutions. 

1  On  the  Constitution,  I.  138.  "  In  all  the  States  the  governor 
was  commander-in-chief.  .  .  .  The  President's  pardoning  power 
was  drawn  from  the  example  of  the  States;  they  had  granted  it  to 
the  governors  —  in  some  cases  with  the  advice  of  a  council  —  in  all 
the  States  except  Connecticut,  Rhode  Island,  and  Georgia,  where 
it  was  retained  to  the  legislature,  and  in  South  Carolina,  where  it 
seems  to  have  been  forgotten  in  the  constitution  of  1778,  but  was 
given  to  the  governor  in  1790.  The  governor  was  elected  directly 
by  the  people  in  Connecticut,  Massachusetts,  New  Hampshire,  New 
York,  and  Rhode  Island,  and  indirectly,  by  the  two  houses  in  the 
other  eight  States;  and  in  this  nearly  equal  division  we  may,  per- 
haps, find  a  reason  for  the  Convention's  hesitation  to  adopt  either 
system,  and  for  its  futile  attempt  to  introduce  an  electoral  system  as 


VI.  THE  AMERICAN  EXECUTIVE.  153 

To  understand  how  the  functions  of  the  presidency 
are  derived  from  those  of  the  kingship,  it  is  only  neces- 
sary to  compare  the  actual  provisions  of  the  Constitution 
with  the  royal  powers  as  exercised  in  fact  or  in  theory 

a  compromise.  .  .  .  Almost  every  State  prescribed  a  form  of  oath 
for  its  officers;  the  simple  and  impressive  oath  of  the  President 
seems  to  have  been  taken  from  that  of  Pennsylvania,  with  a  sug- 
gestion, much  improved  in  language,  from  the  oath  of  allegiance 
of  the  same  State."  —  Johnson,  "First  Century  of  the  Constitu- 
tion," AVw  Princeton  Revieiu,  September,  1887,  pp.  180,  181. 

Referring  to  the  presidential  electors,  Robinson  remarks :  "  The 
fact  that  the  election  of  the  President  is  left  to  a  body  of  men 
chosen  '  for  the  special  purpose,'  and  '  at  a  particular  conjuncture  ' 
is  the  striking  characteristic  of  the  system.  Two  European  poten- 
tates, the  German  Emperor  and  the  Pope,  were  at  the  time  of  the 
Convention  elected  by  small  bodies  of  men,  in  one  case  even 
called  '  electors '  \J>rincipes electores  ;  Ger.  Kurfursten'\.  Sir  Henry 
Maine  thinks  that  the  members  of  the  Convention  '  were  to  a  con- 
siderable extent  guided '  by  the  example  of  the  Holy  Roman 
Empire.  'The  American  republican  Electors,'  he  goes  so  far  as 
to  say,  '  are  the  German  imperial  Electors,  except  they  are  chosen 
by  the  several  States.'  A  glance  at  this  feature  of  the  Imperial 
Constitution  will,  however,  show  that  there  is  in  reality  almost  no 
similarity  between  it  and  our  electoral  colleges.  The  latter  form  a 
numerous,  ever-changing  body,  the  members  of  which  are  chosen 
for  a  single  election  only,  whereas  the  imperial  college  was  not  only 
small  and  elastic,  but  permanent.  Further,  the  choice  of  the 
Emperor  was  direct ;  that  of  the  President,  constitutionally  at  least, 
is  indirect.  Had  the  choice  of  the  President  been  left  to  the 
governors  of  the  States,  as  was  suggested  by  Gerry,  they  would 
have  formed  an  electoral  body  somewhat  resembling  that  of  the 
Empire.  Although  the  plan  of  electing  the  President  finds  no 
precedent  in  the  Old  World,  we  have  already  seen  too  much  of  the 
variety  of  constitutional  development  on  this  side  of  the  Atlantic, 
hastily  to  declare  it  new.     In  the  constitution  of  Maryland  (1776) 


154  SOURCES   OF   THE    CONSTITUTION.         chap. 

at  the  time,  or  just  prior  to  tlie  time,  of  the  Philadelphia 
Convention.' 

The  members  of  the  Convention  seem  to  have  regarded 
the  Commentaries  of  Sir  William  Blackstone  as  trustworthy- 
authority  on  the  subject  of  royal  prerogative,  and  to  have 
taken  the  book  as,  in  some  sense,  a  guide  in  their  task  of 
executive  construction.  For  this  they  have  been  criti- 
cised. And  the  grounds  of  the  criticism  are  thus  stated 
by  Mr.  Bryce  :  "Their  view  was  tinged  not  only  by  recol- 
lections of  the  influence  exercised  by  King  George  III., 
an  influence  due  to  transitory  causes,  but  which  made 

we  find  an  almost  exact  counterpart  of  the  electoral  college  chosen 
in  each  of  the  States  on  the  occasion  of  a  presidential  election. 
The  senators  were  selected  by  a  body  of  electors,  chosen  every  five 
years  by  the  inhabitants  of  the  State  for  this  particular  purpose  and 
occasion.^''  —  Publications  American  Academy,  No.  9,  pp.  228,  229. 
The  correctness  of  Robinson's  opinion  as  to  this  origin  of  the 
electoral  system  receives  important  confirmation  from  contempora- 
neous opinion  of  the  constitutional  period.  In  the  Massachusetts 
Convention,  Bowdoin  expressed  the  view :  "  This  method  of  choos- 
ing [the  President]  was  probably  taken  from  the  manner  of  choos- 
ing senators  under  the  constitution  of  Maryland."  —  Elliot's  Debates, 
II.  128. 

1  Franklin's  plan  of  union  of  the  colonies  submitted  to  the 
Congress  at  Albany,  1754,  provided  for  a  President  General  to 
govern  the  united  colonies,  who  should  be  appointed  and  supported 
by  the  crown.  This  executive  was  to  nominate  military  officers; 
commission  all  officers;  manage,  with  the  advice  of  a  Grand  Coun- 
cil, Indian  affairs;  have  a  veto  upon  all  the  acts  of  the  Grand  Coun- 
cil, and  carry  their  acts  into  execution.  See  Frothingham,  Rise  of 
the  Republic  of  the  United  States,  142,  143.  Also  Sparks,  Works  of 
Franklin,  111.  51;  VownM,  Administration  of  the  Colonies,  Gd.  1768, 
App.  IV. 


VI.  THE   AMERICAN  EXECUTIVE.  155 

them  overrate  its  monarchical  element,  but  also  by  the 
presentation  of  it  which  they  found  in  the  work  of  Mr. 
Justice  Blackstone.  He,  as  was  natural  in  a  lawyer  and 
a  man  of  letters,  described  rather  its  theory  than  its  prac- 
tice, and  its  theory  was  many  years  behind  its  practice."^ 
Nevertheless,  if  Blackstone  represents  the  monarchical 
powers  as  greater  than  they  were  in  actual  practice  at 
the  moment  of  his  writing,  he  yet  represents  what  at  one 
time  had  been  the  powers  of  English  kings.  In  trusting 
to  him  as  a  guide,  the  members  of  the  Convention  seem 
to  have  committed,  at  worst,  no  greater  fault  than  that 
of  modelling  after  an  older  and  stronger  form  of  the 
English  executive  rather  than  a  strictly  contemporaneous 
one.  The  fact  itself  of  the  derivation  of  the  powers  of 
the  presidency  from  those  of  the  kingship  is  not  affected, 
whether  the  point  of  touch  between  the  two  be  at  an 
earlier  or  at  a  later  period  of  the  royal  office.  The  jus- 
tice of  the  criticism,  therefore,  does  not  essentially  con- 
cern the  present  inquiry.  And  since,  whether  wisely  or 
unwisely,  the  members  of  the  Convention  did  give  the 
Commentaries  the  consideration  due  to  a  standard,  the 
great  law-book  must  be  accorded  a  somewhat  similar 
place  in  comparing  the  results  of  their  labour  in  the  Con- 
stitution. 

Following  Blackstone's  division,  therefore,  let  us  pro- 
ceed to  examine  the  threefold  relation  of  the  royal  powers 
(I.)  to  legislation,  (II.)  to  foreign  affairs,  and  (III.)  to 

^  American  Commoniueallh,  I.  26. 


156  SOURCES    ()/'    Till:    CO.MSTITfJTIOjV.         ciiAi-. 

iiitcni.il  ,i(liiiiiii:-,lrati(;ii,  —  (  orisidcriii/^  ;it.  the   s.'irne  time 
the  [)r(;si(lcntial  functions.' 

I.  As  regards  legislative  relations,  the  sovereign  of  that 
|)erif)(l  was,  according  to  iJlackstonc,  a  f:onstitnent  [j.irt  of 
I'.'irli.iincnt.  As  such,  ;ill  hills  rc'inired  hi-,  ;i|)|)rov;il,  ;iiid 
he  possessed,  in  theory  at  least,  the  right  (jf  vetf;.'  lie 
might  address  communications  from  time  to  time  to  I'ar- 
liament,  and  he  had  the  prerogative  (jf  convening,  jiro- 
roguing,  adjourning,  and  dissolving  that  body. 

Turning  to  the  Constitution  of  the  United  States,  we 
read:  "livery  bill  which  shall  have  passed  the  House 
of  Representatives  and  the  Senate  shall,  before  it 
becomes  a  law,  be  presented  to  the  President  c>f  the 
United  States;  if  he  approve  he  shall  sign  it,  but  if 
not,  he  shall  return  it  vvidi  his  (objections  to  that  house 
in  which   it  originatefl,  who  shall  enter  the  objeclirjns  at 

'  On  this  general  tlieine,  see  lUackstone,  Coinineiitarirs,  I'.ook  I. 
Chap.  VII. 

'■^  "  Since  the  accession  of  the  House  of  Hanover  no  sovereign  [of 
KnglandJ  has  exercised  the  prerofjative  of  refusing  the  royal  as- 
sent to  a  hill  which  has  passed  both  houses,  hut  it  is  not  surprising 
to  find  that  (ieorj^e  HI.  was  prepared  to  do  so.  'I  hope,'  he  wrote 
to  Lord  North  in  1774, 'the  crown  will  always  he  able,  in  either 
house  of  Parliament,  to  throw  out  a  hill;  hut  I  shall  never  consent 
to  use  any  expression  which  tends  to  establish  that  at  no  time  the 
right  of  the  crown  to  dissent  is  to  be  used.'" — Taswcll-I-angmcad, 
I'.vf^lish  Consliintional  History^  706.  See  also  Lord  I5rf)ugham, 
Works,  HI,  85.  It  must  be  ronicmbercd,  however,  that  in  addition 
to  the  veto  of  parliamentary  legislation,  the  sovereign,  as  also  the 
governors,  had  the  acknowledged  right  to  veto  colonial  legislation. 
I'hus,  to  Americans,  veto  power  in  the  executive  has  ever  been  a 
reality. 


VI.  THE   AMERICAN  EXECUTIVE.  157 

large  on  their  journal  ami  proceed  to  reconsider  it."  ' 
The  I'resident's  veto  may  be  overridden,  hy  a  sufficient 
majority  in  (Congress,  but  that  is  rarely  attcmi)ted,  and 
when  attempted  seklom  accomplished  ;  and  therefore  the 
veto  is  potential  in  ordinary  practice.  While  some  political 
writers  at  the  present  day  have  contended  that  the  veto 
power  of  the  English  sovereign  has  lapsed,  as  not  having 
been  used  since  the  reign  of  Queen  Anne/  such  lapse 
was  certain!)'  not  recognized  in  the  days  of  (ieorge  III., 
who   expressly  affirmed    the    right,  though    he    did    not 

'  Constitution  of  the  United  States,  Arl.  I.  .Sec.  7.  K(jhinson  tlius 
refers  to  the  action  of  the  Constitutional  Convention  on  the  veto 
power:  "The  suggestion  that  the  executive  should  have  an  absolute 
veto  on  all  legislation  naturally  met  with  little  favour  in  the  Conven- 
tion, in  sjjite  <jf  the  influence  of  Wilson  and  Ilamilt'jn,  who  favoured 
it  on  the  ground  that,  like  the  veto  of  the  lOnglish  sovereign,  although 
seldom  or  never  used,  it  would  serve  to  prevent  rash  legislation.  A 
motion  to  give  the  executive  a  suspensive  veto  was  negatived  by  all 
the  States.  A  motion  of  Gerry  of  Massachusetts,  June  4th,  giving 
the  executive  the  power  to  negative  any  legislative  act  which  should 
not  afterwards  be  passed  by  two-thirds  of  each  branch  of  the  national 
legislature,  was  passed  by  a  vote  of  eight  to  two,  and  this  important 
point  was  once  for  all  settled.  Not  only  was  this  idea  of  a  f)uali(ied 
veto  taken  directly  from  the  constitution  of  Massachusetts  (1780) 
and  New  York  (1777),  but  in  the  final  flraft  the  very  W(jrd»  of  the 
Massachusetts  constitution  fref|uently  occur." —  f'u/jlications  Ameri- 
can Academy,  \o.  9,  pp.  230,  231.  See  also  Klliot,  Debates,  V.  151, 
155,  and  Massachusetts  Constitution  of  17S0,  I't.  II.  Ch.  I.  Sec.  I. 
Art.  II. 

'^  The  last  occasions  on  which  the  royal  veto  power  was  exercised 
in  England  were  in  1692  and  1694,  when  William  III.  refused  the 
royal  assent  to  the  Hill  for  Triennial  Parliaments  and  the  Place 
I$ill,  and  in  1707,  when  Queen  Anne  refused  assent  to  a  Scotch 
militia  bill. 


158  SOURCES   OF   THE    CONSTITUTION.        chap. 

exercise  it.  And  whatever  the  case  in  England,  the 
practice  of  the  veto  power  by  the  governors,  and  by  the 
king  in  matters  of  colonial  legislation  in  America,  was  a 
fully  recognized  legal  right  down  to  the  outbreak  of  the 
American  Revolution,  and  naturally  passed  into  the  con- 
stitutional law  of  the  States  and  of  the  American  nation. 

In  Article  I.  Section  3  of  the  Constitution  it  is  pro- 
vided :  "  He  [the  President]  shall  from  time  to  time  give 
to  Congress  information  of  the  state  of  the  Union,  and 
recommend  to  their  consideration  such  measures  as  he 
shall  judge  necessary  and  expedient ;  he  may  on  extraor- 
dinary occasions  convene  both  houses,  or  either  of 
them,  and  in  case  of  disagreement  between  them,  with 
respect  to  the  time  of  adjournment,  he  may  adjourn  them 
to  such  time  as  he  shall  think  proper." 

The  President's  message  is  derived  from  the  royal 
act  of  communicating  with  Parliament.  The  message 
is  not  a  production  of  the  Cabinet,  like  the  modern 
speech  from  the  throne,  but  a  veritable  communication 
of  the  executive  in  person.  Washington  was  accustomed 
to  deliver  an  oral  address  "  like  an  English  king,  and 
drove  in  a  coach  and  six  to  open  Congress,  with  some- 
thing of  an  English  king's  state."  ^  Jefferson,  however, 
filled  with  theories  of  democracy  imbibed  from  France, 
introduced  the  practice  of  sending  written  messages, 
which  has  since  been  continued.^ 

^  Bryce,  Airierican  Commomvealth,  I.  55. 

-  Burgess  says :  "  The  Constitution  apparently  vests  in  the 
President  the  power  to  initiate  legislation,  in  the  provision  requiring 


VI.  THE   AMERICAN  EXECUTIVE.  159 

B)^  ro3'al  theory,  all  laws  proceed  from  the  crown's 
authority.  However  they  may  be  discussed  and  passed 
by  Parliament,  the  sovereign  gives  them  their  force  ;  bills 
are  turned  into  statutes  by  him.  And  although  the 
theory  has  not  been  followed  in  the  United  States,  the 
practice  under  it  has.  With  rare  exceptions,  bills  are 
turned  into  statutes  by  the  President,  and  go  forth 
directlv  from  his  hand  to  the  statute  book. 


him  to  give  information  to  the  Congress  of  the  'state  of  the  Union,' 
and  to  recommend  such  measures  as  he  shall  judge  necessary  and 
expedient.  It  does  not  appear  to  me  that  any  further  constitutional 
warrant  is  necessary  to  authorize  the  President  to  construct  and 
present  regular  bills  and  projects  of  law  to  the  Congress.  The 
Constitution  does  not  prescribe  the  form  in  which  the  President 
shall  present  the  measures  which  he  may  recommend;  nor  does  it 
vest  the  Congress  with  the  power  to  do  it,  either  by  an  express 
provision  or  by  any  reasonable  implication.  It  leaves  the  deter- 
mination of  the  form,  therefore,  to  the  President  himself  We 
must  look  elsewhere  for  the  explanation  of  the  fact  that  the  Presi- 
dent does  not  present  his  recommendations  to  Congress  in  the  form 
of  regular  bills  or  projects.  It  is  to  be  found  in  the  lack  of  any 
executive  organs  for  presenting,  explaining,  defending,  and,  in 
general,  managing  such  government  bills  in  Congress.  It  cannot 
be  predicted  with  certainty  that  the  existence  of  such  organs  would 
strengthen  the  power  of  the  executive  in  legislation.  It  might  lessen 
his  real  influence."  —  Political  Science  and  Comparative  Constitu- 
tional I.a7i<,  II.  254.  It  remains  true,  however,  that  though  not 
having  cabinet  ministers  with  a  seat  in  Congress,  the  President  does 
initiate  much  legislation  through  contact  informally  with  Congress. 
And  at  times  these  measures  are  discussed  as  carefully  in  Cabinet  as 
if  they  were  to  be  presented  in  the  form  of  bills,  and  indeed  are 
practically  so  presented.  See  notes  of  conversation  with  President 
Hayes,  in  present  chapter. 


160  SOURCES   OF  THE    CONSTITUTION.        chap. 

II.  In  external  relations  of  the  nation  the  king  was 
regarded,  by  Blackstone,  the  representative  of  his  people, 
according  to  the  idea  of  the  Cyning  dating  from  the 
earliest  times.  It  was  in  that  capacity  that  he  dealt  with 
other  nationalities,  sending  ambassadors  and  ministers 
to  foreign  states,  and  receiving  ambassadors  and  ministers 
from  them ;  making  treaties,  leagues,  and  alliances. 
He  was  commander-in-chief  of  the  army  and  navy, 
with  the  executive  powers  of  war,  and  the  power  to 
issue  letters  of  marque  and  reprisal,  and  to  grant  safe- 
conducts  and  passports.  He  appointed  and  commissioned 
all  military  and  naval  officers. 

Turning  to  the  American  Constitution,  Article  II.,  we 
find  the  President  acting  as  the  representative  of  the 
nation  in  relation  to  foreign  affairs,  on  the  same  the  lines. 
"  He  shall  receive  ambassadors  and  other  ministers."  ^ 
"  He  shall  have  power,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  to  make  treaties,  provided  two-thirds 
of  the  senators  present  concur ;  -  and  he  shall  nominate, 
and  by  and  with  the  consent  of  the  Senate  shall  appoint, 
ambassadors,    other    public    ministers,    and    consuls." " 

1  Constitution  of  the  United  States,  Art.  II.  Sec.  3. 

2  The  President  in  practice  first  agrees  with  a  foreign  nation 
upon  the  terms  of  a  treaty,  and  then  submits  the  draft  to  the  Senate 
for  ratification.  The  Senate  may  ratify  the  treaty  as  it  is  presented, 
or  may  reject  it,  or  may  amend  it.  In  the  last  case  the  amended 
treaty  must  be  presented,  of  course,  to  the  foreign  power  for  agree- 
ment to  its  altered  provisions. 

3  Constitution  of  the  United  States,  Art.  II.  Sec.  2. 

"The  failure  to  establish  an  efficient  council  led  the  Convention 


VI.  THE  AMERICAN  EXECUTIVE.  161 

"The  President  shall  be  commander-in-chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia 
of  the  several  States  when  called  into  the  actual  service 
of  the  United  States."  ^    The  President  appoints,  with  the 

to  limit  the  President's  power  by  giving  the  Senate  control  over 
some  of  his  acts.  The  association  of  the  Senate  with  the  President 
in  the  exercise  of  the  appointing  power  is  strikingly  similar  to  the 
system  pursued  in  New  York  under  the  constitution  of  1777.  There 
the  executive,  free  to  act  alone  in  all  other  respects,  was  bound  to 
make  appointments  '  by  and  with  the  consent  of  a  select  committee 
of  the  Senate.'  "  —  Publications  of  the  American  Academy,  No.  9, 
p.  225.  See  Neiij  York  Constitution  {yiTJ^,  Art.  XXIII.  For  a 
different  ^iew  of  the  origin  of  this  relation  of  the  Senate  to  the 
appointing  power,  see  Campbell,  Puritan  in  Holland,  England,  and 
America,  II.  424. 

The  President's  power  of  filling  vacancies  by  commissijns  to  ex- 
pire at  the  end  of  the  next  session  of  the  Senate,  is  taken  in  terms 
from  the  constitution  of  South  Carolina. 

1  3id.  "The  power  to  declare  war  has  not  been  confided  to 
the  President  of  the  United  States,  but  is  conferred  on  Congress. 
The  President,  however,  is  by  the  same  instrument  made  com- 
mander-in-chief of  the  army  and  navy,  and  it  is  possible  for  him,  in 
the  recess  of  Congress,  if  sufficiently  reckless  of  consequences,  to 
bring  on  a  war  \\ith  a  foreign  nation,  by  employing  armed  forces 
against  it  in  a  hostile  manner.  Those  who  opposed  the  action  of 
the  government  in  the  case  of  the  war  with  Mexico  insisted  that 
that  war  was  brought  on  by  the  President  wrongfully  taking  forcible 
possession  of  the  territory  in  dispute;  but  Congress  justified  the 
President,  and  declared  that  war  existed  '  by  the  act  of  Mexico.'  " 
—  Cooley's  Blackstone,  Commentaries,  Bk.  I.  257,  n.  14. 

The  "  war  powers  "  of  the  President  are  far  beyond  powers  or- 
dinarily exercised  by  constitutional  monarchs.  Lawrence  says  of 
them :  "  It  was  during  the  War  of  Secession  that  the  powers  of  the 
President  were  exercised  to  an  extent  unprecedented  in  English 
history.     Based   on  an   insurrection  in  the  several  States  therein 


162  SOURCES   OF   THE    CONSTITUTION.        chap. 

consent  of  the  Senate,  and  commissions  military  and 
naval  officers.     In  time  of  war,  he  has  all  the  powers 

enumerated,  and  without  awaiting  a  meeting  of  Congress  convened 
for  the  4th  of  July,  1861,  the  President  proclaimed,  on  the  19th 
and  27th  of  April,  the  blockade  of  the  ports  of  these  States.  By 
his  proclamation  of  May  3,  1 861,  he  called  into  service  upward  of 
42,000  volunteers  to  serve  for  three  years,  increased  the  regular 
army  by  22,000  men,  and  added  18,000  seamen  to  the  naval  service. 
.  .  .  These  acts  were  sustained  by  the  Supreme  Court  on  the  first 
occasion  on  which  the  question  came  regularly  before  it,  in  the  case 
of  the  validity  of  the  prizes  made  for  violation  of  the  President's 
blockade.  .  .  .  President  Lincoln's  attorney-general  had  advised 
him,  in  1861,  that  it  was  for  the  President  alone  to  pronounce  upon 
the  political  considerations  which  determine  in  what  cases  a  sus- 
pension of  the  privilege  of  habeas  corpus  might  take  place,  and  that 
the  authority  conferred  on  him  by  the  Constitution  was  in  nowise 
affected  by  the  powers  with  which  the  act  of  1789  had  invested  the 
judges  with  regard  to  the  writ  ol  habeas  corpus. 

"  Immediately  after  the  secession  of  the  South,  a  direct  conflict 
arose  between  the  executive  and  judicial  power  in  consequence 
of  the  refusal,  by  order  of  the  President,  of  a  military  commander 
to  obey  a  writ  of  habeas  corpus  issued  by  the  Chief  Justice  of  the 
United  States.  Chief  Justice  Taney,  after  declaring  that  a  military 
government  had  been  substituted  for  the  government  of  the  Con- 
stitution, says  that  nothing  remains  for  him  to  do  but  to  order  all 
the  proceedings  in  the  case,  with  his  opinion,  to  be  filed  and  re- 
corded in  the  appropriate  court,  and  direct  the  clerk  to  transmit  a 
copy  under  seal  to  the  President  of  the  United  States.  '  It  will  then 
remain  for  that  high  officer,  in  fulfilment  of  his  constitutional  obli- 
gations to  take  care  that  the  laws  be  faithfully  executed,  to  deter- 
mine what  course  he  will  take  to  cause  the  civil  process  of  the 
United  States  to  be  respected  and  enforced.'  Perhaps  a  summary 
of  what  were  the  pretensions  of  the  executive  as  regards  personal 
liberty  may  be  best  found  in  a  note  addressed  by  Mr.  Seward  to 
Lord  Lyons  in  October,  1861  :  '  It  seems  necessary  to  state,  for  the 
information  of  that  government,  that  Congress  is  by  the  Constitution 


VI.  THE  AMERICAN  EXECUTIVE.  163 

recognized  by  the  laws  and  usages  of  war.  The  right  to 
declare   war  being  confined   to   Congress,   he  can  only 

invested  with  no  executive  power  or  responsibility  whatever,  but  on 
the  contrary,  that  the  President  of  the  United  States  is,  by  the  Con- 
stitution and  laws,  invested  with  the  whole  executive  power  of  the 
government,  and  charged  with  the  supreme  direction  of  all  munici- 
pal and  ministerial  civil  agents,  as  well  as  of  the  whole  land  and 
naval  forces  of  the  United  States,  and  that,  invested  with  these 
ample  powers,  he  is  charged  by  the  Constitution  and  laws  with  the 
absolute  duty  of  suppressing  insurrection,  as  well  as  of  preventing 
and  repelling  invasion,  and  that  for  these  purposes  he  constitution- 
ally exercises  the  right  of  suspending  the  writ  of  habeas  corpus 
whenever  and  wheresoever  and  in  whatsoever  extent  the  public  safety, 
endangered  by  treason  or  invasion  in  arms,  in  his  judgment  requires.' 

"At  the  date  of  Mr.  Seward's  note  no  proclamation,  in  the  sense 
of  his  communication,  had  been  issued,  and  no  intimation  of  any 
such  intention  had  been  in  any  way  given.  On  the  24th  of  Septem- 
ber a  proclamation  establishing  martial  law  was  issued,  and  by  an 
order  of  the  Department  of  War,  of  September  26,  1862,  a  national 
police  was  established  in  all  the  States  to  watch  over  the  execution 
of  the  proclamation."  —  Xorth  American  Review,  November, 
iSSo,  pp.  395,  396. 

Mr.  Bryce,  in  speaking  of  the  presidential  power,  says  that  in 
war  time  "  it  expands  with  portentous  speed.  Both  as  commander- 
in-chief  of  the  army  and  navy  and  as  charged  with  the  '  faithful 
execution  of  the  laws,'  the  President  is  likely  to  be  led  to  assume 
all  the  powers  which  the  emergency  requires.  How  much  he  can 
legally  do  without  the  aid  of  statutes  is  disputed,  for  the  acts  of 
President  Lincoln  during  the  earlier  part  of  the  War  of  Secession, 
including  his  proclamation  suspending  the  writ  of  habeas  corpus, 
were  subsequently  legalized  by  Congress;  but  it  is  at  least  clear  that 
Congress  can  make  him,  as  it  did  make  Lincoln,  almost  a  dictator. 
And  how  much  the  war  power  may  include  appears  in  this,  that,  by 
virtue  of  it  and  without  any  previous  legislative  sanction,  President 
Lincoln  issued  his  emancipation  proclamations  of  1862  and  1863." 
—  American  Commonu'eaUh,  I.  50,  51. 


164  SOURCES   OF  THE    CONSTITUTION.        chap. 

proclaim  it  when  Congress  has  acted.  But  in  advance 
of  any  congressional  enactment  he  may  employ  the 
army  and  navy  to  put  down  insurrection  and  repel  in- 
vasion. 

III.  In  internal  affairs  the  king  had,  according  to 
Blackstone,  undefined  powers  in  the  execution  of  the 
laws.  By  his  prerogative  as  Fountain  of  Honour  he 
appointed  officials  and  conferred  honours.  As  Fountain 
of  Justice,  he  was  assumed  to  possess  rights  derived  from 
the  old  judicial  functions  of  the  crown,  —  but  exer- 
cised them  by  proxy,  through  judges  of  the  law  courts 
whom  he  appointed  and  commissioned.^  A's,  supreme 
conservator  of  the  peace,  he  was  in  theory  held  to  be 

1  Blackstone  says :  "  From  the  same  original,  of  the  king's  being 
the  Fountain  of  Justice,  we  may  also  deduce  the  prerogative  of 
issuing  proclamations,  which  is  vested  in  the  king  alone.  The 
proclamations  have  then  a  binding  force,  when  (as  Sir  Edward 
Coke  observes)  they  are  grounded  upon  or  enforce  the  laws  of  the 
realm."  —  Commentaries,  Bk.  I.  269.  The  proclamations  of  the 
President  follow  this  usage.  But  a  proclamation  may  introduce  a 
practically  new  condition  of  affairs,  as  did  the  celebrated  Emancipa- 
tion Proclamation  of  President  Lincoln.  Landon  remarks  :  "There 
were  many  who  regarded  this  proclamation  as  a  violation  of  the 
Constitution,  but  the  loyal  answer  was,  that  while  the  war  lasted  it 
was  disloyalty  to  stickle  over  the  Constitution,  since  unless  the  war 
could  be  victoriously  ended,  the  Constitution  itself  would  be  of  no 
value.  But  the  true  answer  is,  that  as  commander-in-chief  of  the 
army  and  navy,  the  President  has  the  constitutional  power  to  em- 
ploy the  means  recognized  by  the  laws  of  war  as  necessary  to  con- 
quer the  enemy.  Congress  can  pass  no  law  which  can  deprive  the 
President  of  the  power  which  the  Constitution  confers,  in  creating 
him  commander-in-chief."  —  Constitutional Histoi-y  and  Government 
of  the  United  States,  205. 


VI.  THE  AMERICAN  EXECUTIVE.  165 

the  prosecutor  of  crimes  ;  and  in  this  capacity  he  granted 
reprieves  and  pardons. 

Comparing  the  Constitution  of  the  United  States,  Sec- 
tion I  of  Article  II.  is  noted  for  its  great  width  and  flexi- 
bility,—  "The  executive  power  shall  be  vested  in  a 
President  of  the  United  States  of  America."  And  so 
is  Section  2  of  the  same  article,  — "  He  shall  take  care 
that  the  laws  be  faithfully  executed,  and  shall  commis- 
sion all  officers  of  the  United  States."^  The  President 
appoints,  with  the  consent  of  the  Senate,  all  chief  civil 
officers  of  the  nation,  and  commissions  all  national 
officials.  And  though  the  English  theory  of  relation  to 
judicial  matters  is  ignored,  he  has  the  royal  power  of 
appointing  judges ;  and  the  Chief  Justice  and  Justices  of 
the  Supreme  Court,  and  all  judges  of  the  national  courts 
are  commissioned  by  him.     As  preserver  of  the  peace, 

1  In  his  discourse  on  77^1?  Jubilee  of  the  .Constitution,  John  Quincy 
Adams  says  :  "  It  has  perhaps  never  been  duly  remarked  that,  under 
the  Constitution  of  the  United  States,  the  powers  of  the  executive 
department,  explicitly  and  emphatically  concentrated  in  one  person, 
are  vastly  more  extensive  and  complicated  than  those  of  the  legisla- 
tive. The  language  of  the  instrument  in  conferring  legislative 
authority  is,  '  All  legislative  power,  herein  granted,  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  consist  of  a  Senate 
and  House  of  Representatives.'  But  the  executive  authority  is 
unreserved  in  terms,  —  '  The  executive  power  shall  be  vested  in  a 
President  of  the  United  States  of  America.'  " 

Upshur  says:  "We  have  heard  it  gravely  asserted  in  Congress, 
that,  whatever  power  is  neither  legislative  nor  judiciary,  is  of 
course  executive,  and  as  such  belongs  to  the  President  under  the 
Constitution." — A^ature  and  Character  of  our  Federal  Govern- 
ment. 


166  SOUJiCES   OF   THE    CONSTITUTION.         chap. 

he   grants   reprieves   and    pardons   to   breakers    of  the 
peace. ^ 

The  relation  of  the  President  to  his  Cabinet  has  already 
been  referred  to.  When  Article  11.  Section  2  of  the 
Constitution  was  in  formation  at  Philadelphia,  a  proposi- 
tion was  made  to  give  the  executive  a  Privy  Council 
similar  to  that  of  the  English  king ;  and  a  draft  was 
offered  to  the  effect,  that  "  the  President  may  from  time 
to  time  submit  any  matter  to  the  discussion  of  the  council 
of  state,  and  he  may  require  the  written  opinions  of  any 
one  or  more  of  the  members.  But  he  shall  in  all  cases 
exercise  his  own  judgment,  and  either  conform  to  such 
opinions  or  not,  as  he  may  think  proper."^  This  draft 
was  referred  to  a  committee,  which  reported  it  in  the 
somewhat  altered  form,  that  "  the  President  shall  have  a 
Privy  Council  .  .  .  whose  duty  it  shall  be  to  advise  in 
matters  respecting  the  execution  of  his  office,  which  he 
shall  think  proper  to  lay  before  them ;  but  their  advice 
shall  not  conclude  him,  nor  affect  his  responsibility  for 
the  measures  which  he  shall  adopt."  ^     This  was  again 

1  "  One  of  the  powers  intrusted  to  the  President  ...  is  that  of 
granting  reprieves  and  pardons.  ...  It  is  derived  from  the  history 
of  our  British  ancestors,  and  in  the  absence  of  any  more  particular 
definition  of  it  than  is  found  in  this  short  sentence  of  the  Constitu- 
tion, so  far  as  it  has  become  the  subject  of  public  discussion,  or  of 
judicial  decision,  reliance  has  been  had  mainly  upon  the  nature  and 
character  of  the  power  as  exercised  by  the  crown  of  Great  Britain." 
—  Mr.  Justice  Miller,  of  the  Supreme  Court,  Lectures  on  Constilulion 
of  the  United  States,  164,  165. 

-  Elliot,  Debates,  V.  446. 

3  Ibid.  V.  462. 


VI.  THE  AMERICAN  EXECUTIVE.  167 

referred  to  committee,  and  finally  was  adopted  in  the 
shape  in  which  it  appears  in  the  Constitution,  —  providing 
simply  that  the  President  "  may  require  the  opinion,  in 
writing,  of  the  principal  officer  in  each  of  the  executive 
departments,  upon  any  subject  relating  to  the  duties  of 
their  respective  offices."^ 

Thus,  a  Privy  Council  was  not  established ;  and  the 
President  was  left  to  advise  with  his  own  heads  of  de- 
partments, if  he  desired  and  in  so  far  as  he  desired,  or 
to  act  entirely  without  their  advice  and  in  accordance 
with  his  own  will." 

1  Constitution  of  the  United  States,  Art.  II.  Sec.  2. 

-  "  Jefferson,  who  certainly  had  as  much  confidence  in  his  official 
advisers,  among  whom  were  Madison  and  Gallatin,  as  any  other 
President,  did  not  ask,  I  was  assured  by  one  of  its  most  trusted 
members,  the  advice  of  his  Cabinet  on,  perhaps,  the  two  most 
important  measures  of  his  administration, — the  purchase  of  Louisi- 
ana and  the  rejection  of  the  treaty  concluded  by  Monroe  and 
Pinckney  in  i8o6.  The  former  of  these  measures,  as  involving  the 
acquisition  of  foreign  territor}',  was  ever  regarded  as  the  great 
constitutional  question  of  the  day.  President  Lincoln,  it  is  under- 
stood, seldom  or  never  had  any  cabinet  meetings."  —  \V.  B.  Law- 
rence, LL.D.,  A'orth  American  Reviezu,  November,  i8So,  p.  394. 

The  author  once  had  a  conversation  with  President  Rutherford 
B.  Hayes  regarding  the  practical  operation  of  the  presidency.  By 
his  permission  I  made  notes  of  the  conversation  at  the  time,  for 
publication  in  this  book.  Asking  about  the  action  of  a  President 
independently  of  the  advice  of  his  Cabinet, "  he  told  me  that  he  him- 
self and  other  Presidents  had  so  acted  occasionally.  As  to  the 
general  relations  of  the  Cabinet,  he  said  that  Presidents  were  mas- 
ters of  the  situation,  not  only  by  law,  but  by  the  fact  that  Cabinet 
officers  were  appointed  by  and  dependent  upon  the  executive.  He 
said  the  custom  of  the  past  had  varied;   that  some  Presidents  had 


168  SOURCES    OF   THE    CONSTITUTION.        chap. 

This  intention  to  make  the  President  a  personal  execu- 
tive, free  from  cabinet  or  council  control,  receives  further 

been  more  influenced  by  their  cabinets  than  others;  that  President 
Buchanan  was  much  worried  by  his  Cabinet,  because  not  strong 
enough  to  insist  on  his  own  will.  On  the  other  hand,  President 
Lincoln  had  decided  on  his  emancipation  proclamation  without  con- 
sulting his  Cabinet,  to  whom  he  read  it  over  merely  for  suggestion 
and  amendment.  He  (President  Hayes)  had  once  decided  a  measure, 
overruling  his  Cabinet.  He  knew  them  to  be  opposed  to  it  and  did 
not  ask  their  views,  but  announced  his  own  policy,  and  carried  it 
out.  In  matters  of  a  department,  he  gave  greater  weight  to  the 
opinion  of  the  secretary  of  that  department,  if  the  secretary  opposed 
his  own  views;  but  on  two  occasions,  at  least,  he  had  decided  and 
carried  out  matters  against  the  wishes  of  the  secretary  of  the  depart- 
ment affected.  He  had  done  so  in  the  case  of  his  Secretary  of  the 
Treasury,  whose  opinion  he  usually  valued.  In  each  case,  knowing 
the  certainty  of  diverse  views  from  the  secretary,  he  had  not  asked 
those  views,  but  had  announced  to  the  secretary  his  own  policy  and 
decision.  In  answer  to  a  question  of  mine,  as  to  whether  the 
President  or  the  secretaries  usually  initiated  \iM%\r\&%%  at  meetings  of 
the  Cabinet,  he  said  that  there  was  no  uniform  practice ;  but  that 
every  secretary  was  full  of  ideas  as  to  his  own  department.  When 
wishing  to  introduce  a  measure,  the  secretary  usually  consulted  the 
President  privately.  If  the  President  disfavoured  the  proposed 
measure,  it  was,  of  course,  dropped.  In  fact,  no  measures  could 
succeed  except  by  the  President's  own  act  in  either  introducing 
them  or  approving  them. 

"  He  remarked,  that  few  writers  or  public  persons  understood 
the  real  power  of  the  American  executive.  Practically,  the  Presi- 
dent had  the  nation  in  his  hand.  He  was  commander-in-chief  of 
the  army  and  navy,  and  had  control  of  foreign  affairs.  He  could 
at  any  time  force  Congress  into  war  with  foreign  powers.  The 
complicate  relations  with  foreign  powers  rendered  this  always  easy. 
By  law,  Congress  had  the  power  to  declare  war,  but  the  real  power 
was  with  the  executive.  He  detailed  some  of  his  own  experience 
with  foreign  affairs  in  proof  of  the  constant  delicacy  of  such  mat- 


VI.  THE   AMERICAN  EXECUTIVE.  169 

light  from  the  law  of  1789,  which  created  cabinet  minis- 
ters or  heads  of  executive  departments.     The  law  enacts 

ters.  But,  said  he,  if  once  war  exists,  the  President  has  the '  war 
powers';  and  no  man  has  defined  what  those  are,  or  placed  a 
limit  on  them.  The  executive  power  is  large  because  not  defined 
in  the  Constitution.  The  real  test  has  never  come,  because  the 
Presidents  have,  down  to  the  present,  been  conservative,  or  what 
might  be  called  conscientious,  men,  and  have  kept  within  limited 
range.  And  there  is  an  unwritten  law  of  usage  that  has  come  to 
regulate  an  average  administration.  But  if  a  Napoleon  ever  became 
President,  he  could  make  the  executive  almost  what  he  wished  to 
make  it.  The  war  power  of  President  Lincoln  went  to  lengths 
which  could  scarcely  be  surpassed  in  despotic  principle. 

"  I  reminded  him  that  Mr.  Bryce  characterized  this  power  of 
Lincoln  as  practically  that  of  a  dictator.  President  Hayes  agreed 
with  the  description.  He  said  the  scope  of  this  executive  power 
had  never  been  really  realized,  and  that  the  practical  use  of 
power,  even  by  an  ordinarily  strong  President,  was  greater  than  the 
books  ever  described. 

"  He  said  that  much  of  the  legislation  of  Congress  was  ordinarily 
initiated  by  the  President.  The  Constitution  did  not  provide  for 
this,  but  in  practice  it  was  done.  A  large  part  of  legislation  was 
first  considered  in  Cabinet,  and  then  started  in  Congress  by  contact 
privately  between  the  secretaries  and  the  committees  of  Congress. 
I  remarked  that  Mr.  Bryce  had  enlarged  on  the  weakness  of  the 
contact  between  the  President  and  Congress  in  the  initiation  of 
legislation,  and  had  especially  pointed  out  that  the  presidential 
message  had  no  necessary  influence.  He  replied  that  the  message 
was  without  legal  force,  and  that  Congress  could  be  influenced  by 
it  or  not  as  it  saw  fit;  but  that  if  one  were  to  compare  the  messages 
with  legislation,  it  would  be  found  that  legislation  largely  resulted 
from  the  suggestions  of  messages.  Really,  the  message  made  a 
public  statement  of  matters,  which,  less  officially,  were  pressed  upon 
Congress  by  cabinet  ministers,  as  already  mentioned.  While  it  was 
a  fact  that  no  regular  channel  of  necessary  legislative  initiative  was 
possessed  by  the   President,  he,  nevertheless,  did  initiate  a  large 


170  SOURCES   OF   THE    CONSTITUTION.        chap. 

that  the  Secretary  of  State  "  shall  conduct  the  business 
of  the  said  department  [foreign  affairs]  in  such  man- 
ner as  the  President  of  the  United  States  shall,  from  time 
to  time,  order  and  instruct."  ^  And  the  same  principle 
was  applied  to  the  heads  of  other  departments.^  The 
ministers  were  thus  designed,  in  their  very  creation,  to 
be  merely  the  agents  of  the  executive,  and  to  carry  out 
his  will,  rather  than  their  own  ;  having  precisely  the  rela- 
tion that  Lord  North  bore  to  George  III.^     Washington 

proportion  of,  sometimes  the  leading,  legislation  of  his  administra- 
tion. He  had  also  a  certain  amount  of  influence  in  preventing  in 
advance  legislation  that  was  distasteful  to  him,  or  even  in  shaping 
and  amending  bills  in  Congress,  by  intimating  unofficially  his  disap- 
proval and  possible  veto."  —  Notes  of  Conversation  of  the  Author 
-with  President  Hayes,  September  30,  1 889. 

1  Act  of  July  27,  1789. 

2  See  I  Statutes  at  Large,  49.  In  addition  to  the  words  above, 
the  law  requires  the  Secretary  of  State  or  the  Secretary  of  War  to 
"  perform  and  execute  such  duties  as  shall,  from  time  to  time,  be 
enjoined  on,  or  intrusted  to  him  by  the  President  of  the  United 
States,  agreeably  to  the  Constitution."  In  like  manner,  the  duty 
of  the  Secretary  of  the  Navy  "  shall  be  to  execute  such  orders  as  he 
shall  receive  from  the  President  of  the  United  States"  relative  to  his 
department.  —  i  Statutes  at  Large,  553.  These  laws,  with  immate- 
rial changes,  are  in  force  at  the  present  day.  See  Revised  Statutes 
of  the  United  States,  passed  by  1st  session  of  43d  Congress,  1873- 
1874,  etc. ;   2d  ed.,  p.  32,  Sec.  202;   p.  35,  Sec.  216;   p.  71,  Sec.  417. 

3  "There  can  be  no  doubt  that  the  President,  in  the  exercise  of 
his  executive  power  under  the  Constitution,  may  act  through  the 
head  of  the  appropriate  department.  The  heads  of  departments 
are  his  assistants  in  the  performance  of  his  executive  duties,  and  their 
official  acts,  promulgated  in  the  regular  course  of  business,  are  pre- 
sumptively his  acts.  That  has  been  many  times  decided  by  this  [the 
Supreme]  Court."  —  Runkle  v.  United  States,  122  U.  S.  543,  557. 


VI.  THE  AMERICAN  EXECUTIVE.  171 

originated  the  practice  of  consulting  all  the  heads  of  de- 
partments on  important  measures.  But  although  "  cabinet 
meetings  "  eventually  became  customary,  the  Presidents 
have  never  hesitated  to  act  independently  of  advice  when 
they  thought  fit,  and  it  is  said  that  Abraham  Lincohi, 
wielding  greater  power  than  any  of  his  predecessors, 
seldom  held  such  meetings  at  all. 

"The  Cabinet,  as  a  body  of  councillors,"  remarks  Judge 
Cooley,  "  has  no  necessary  place  in  our  constitutional 
system,  and  each  President  will  accord  to  it  such  weight 
and  influence  in  his  administration  as  he  shall  see  fit. 
The  President  —  not  the  Cabinet  —  is  responsible  for  all 
the  measures  of  the  administration,  and  whatever  is  done 
by  one  of  the  heads  of  department  is  considered  as  done 
by  the  President,  through  the  proper  executive  agent. 
In  this  fact  consists  one  important  difference  between 
the  executive  of  Great  Britain  and  of  the  United  States  ; 
the  acts  of  the  former  being  considered  as  those  of  his 
advisers,  who  alone  are  responsible  therefor,  while  the 
acts  of  the  advisers  of  the  American  executive  are  con- 
sidered as  directed  and  controlled  by  him."  ^  The  Pres- 
ident appoints  as  members  of  his  Cabinet  persons  who 
agree  in  his  own  political  views,  and  they  are  not  ex- 
pected to  resign  merely  because  the  opposition  party  is 
in  majority  in  Congress.  It  has  frequently  occurred 
that  the  President's  "  friends  "  in  one  or  both  houses 
of  Congress  have  been  in  a  minority  for  a  considerable 
period. 

^  Cooley's  Blackstone,  Cornnien(a?-ies,  Bk.  I.  231,  n.  6. 


172  SOURCES    OF   THE    CONSTITUTION.        chap. 

It  is  noteworthy  that  while  the  EngHsh  sovereign  has 
lost  influence  in  consequence  of  cabinet  control,  the  Pres- 
ident of  the  United  States  has  not  only  maintained  his 
power  in  time  of  peace,  but  demonstrated  in  time  of  war 
that  it  can  rise,  as  it  did  in  the  administration  of  Lincoln, 
to  a  height  approaching  dictatorship. 

Some  English  writers,  notably  Mr.  Walter  Bagehot, 
have  criticised  this  want  of  a  true  cabinet  system  in  the 
Constitution  of  the  United  States.  Mr.  Bagehot  remarks  : 
"  The  ancient  theory  holds,  that  the  queen  is  the  execu- 
tive. The  American  Constitution  was  made  upon  a  most 
careful  argument,  and  most  of  that  argument  assumes 
the  king  to  be  the  administrator  of  the  English  Constitu- 
tion, and  an  unhereditary  substitute  for  him,  viz.  a  Presi- 
dent, to  be  peremptorily  necessary.  Living  across  the 
Atlantic  and  misled  by  accepted  doctrines,  the  acute 
framers  of  the  Federal  Constitution,  even  after  the  keen- 
est attention,  did  not  perceive  the  prime  minister  to  be 
the  principal  executive  of  the  British  Constitution,  and 
the  sovereign  a  cog  in  the  mechanism.  There  is,  indeed, 
much  excuse  for  the  American  legislators  in  the  history 
of  the  time.  They  took  their  idea  of  our  Constitution 
from  the  time  they  encountered  it.  But  in  the  so-called 
government  of  Lord  North,  George  IIL  was  the  govern- 
ment. Lord  North  was  not  only  his  appointee  and  his 
agent ;  the  minister  carried  on  a  war  which  he  disap- 
proved and  hated,  because  it  was  a  war  which  his  sov- 
ereign approved  and  liked.  Inevitably,  therefore,  the 
American  Convention  believed  the  king,  from  whom  they 


VI.  THE  AMERICAN  EXECUTIVE.  173 

had  suffered,  to  be  the  real  executive,  and  not  the  min- 
ister, from  whom  they  had  not  suffered."^ 

There  are  undoubted  evils  in  the  American  system, 
with  its  possibility  —  which  more  than  once  has  become 
fact  —  of  detriment  to  public  interests  through  conflict 
between  the  executive  and  the  legislature.  But  on  the 
whole,  Americans,  with  their  democratic  tendencies,  owe 
very  much  of  the  stability  of  their  government  to  the 
weakness  of  their  legislature  and  the  strength  of  their 
executive.  Had  Congress  possessed  the  power  of  Par- 
liament to  alter  constitutional  principle  itself,  by  a  ma- 
jority vote  at  any  session,  and  had  the  Cabinet  controlled 
the  President  as  the  English  Cabinet  does  the  sovereign, 
the  American  commonwealth  very  probably  might  have 
been  wrecked  in  its  constructive  period,  or  in  passing 
through  the  storms  of  later  time.  The  presidency  is 
justly  regarded  by  Americans  as  one  of  the  most  valuable 
creations  of  the  Constitution  of  1787.  And  the  fact 
that  the  office  is  rooted  in  the  past  institutions  of  the 
race  is  not  only  the  explanation  of  its  existence,  but  a 
real,  even  though  unrecognized,  cause  of  its  hold  on 
the  national  heart. 

The  observations  of  Sir  Henry  Maine  in  this  connec- 
tion form  too  fitting  a  conclusion  of  the  consideration  of 
the  subject  to  be  omitted.  "  On  the  face  of  the  Con- 
stitution of  the  United  States  the  resemblance  of  the 
President  of  the  United  States  to  the  European  king, 
and  especially  to  the  King  of  Great  Britain,  is  too  obvi- 

^  English  Constitution,  126. 


174  SOURCES   OF  THE    CONSTITUTION.        chap. 

ous  for  mistake.  The  President  has,  in  various  degrees, 
a  number  of  powers  which  those  who  know  something  of 
kingship  in  its  general  history  recognize  at  once  as  pecul- 
iarly associated  with  it,  and  with  no  other  institution. 
The  whole  executive  power  is  vested  in  him.  He  is 
commander  of  the  army  and  navy.  He  makes  treaties 
with  the  advice  and  consent  of  the  Senate,  and  with  the 
same  advice  and  consent,  he  appoints  ambassadors,  min- 
isters, judges,  and  all  high  functionaries.  He  has  a 
qualified  veto  on  legislation.  He  convenes  Congress 
when  no  special  time  of  meeting  has  been  fixed.  It  is 
conceded  in  the  Federalist  that  the  similarity  of  the  new 
presidential  office  to  the  functions  of  the  British  king 
was  one  of  the  points  on  which  the  opponents  of  the 
Constitution  fastened.  Hamilton  replies  to  their  argu- 
ments sometimes  with  cogency,  sometimes,  it  must  be 
avowed,  a  little  captiously.  .  .  .  But  he  mainly  relies 
on  the  points  in  which  the  President  differs  from  the 
king  on  the  terminability  of  the  office,^  on  the  participa- 

1  The  Due  de  la  Rochefoucauld  in  a  letter  to  Franklin,  in  1789, 
expresses  surprise  that,  having  in  mind  the  efforts  to  restrain  the 
powers  of  the  French  monarch,  Americans  should  have  given  such 
great  scope  to  the  functions  of  the  President,  especially  to  one 
whose  re-election  for  life  was  possible.  It  is  true  that  the  un- 
written constitution  has  now  come  to  limit  the  President  to  a 
single  re-election.  But  as  the  unwritten  constitution  is  the  result 
of  custom  merely,  custom  can  change  it.  In  fact,  the  custom  was 
questioned  so  recently  as  the  time  of  Grant,  when  a  strong  effort 
was  made  to  give  him  a  "  third  term."  The  only  real  limit  to  the 
continuation  of  a  given  President  in  power  is  the  will  of  the 
people.    And  history  shows  that  nations  undergo  changes  in  funda- 


VI.  THE  AMERICA.^  EXECUTIVE.  175 

tion  of  the  Senate  in  the  exercise  of  several  of  his 
powers,  on  the  limited  nature  of  his  veto  of  bills  passed 
by  Congress.  It  is,  however,  tolerably  clear  that  the 
mental  operation  through  which  the  framers  of  the  Amer- 
ican Constitution  passed  was  this  :  they  took  the  King  of 
Great  Britain,  went  through  his  powers,  and  restrained 
them  whenever  they  appeared  to  be  excessive,  or  un- 
suited  to  the  circumstances  of  the  United  States.  It  is 
remarkable  that  the  figure  they  had  before  them  was 
not  a  generalized  English  king,  nor  an  abstract  constitu- 
tional monarch  ;  it  was  no  anticipation  of  Queen  Victoria, 
but  George  III.  himself,  whom  they  took  for  their  model. 
Fifty  years  earlier,  or  a  hundred  years  later,  the  English 
king  would  have  struck  them  as  in  quite  a  different  light. 
.  .  .  Now  the  original  of  the  President  of  the  United 
States  is  manifestly  a  treaty-making  king  actively  influ- 
encing the  executive  government.     Mr.  Bagehot  insisted 

mental  opinion  in  the  course  of  ages.  Already  a  most  intelligent 
portion  of  the  community  advocate  a  constitutional  amendment 
to  make  the  presidential  term  of  office  longer  than  four  years. 
Length  of  term  has  so  many  arguments  in  its  favour  that,  if  the 
danger  of  it  is  not  keenly  feared,  pubhc  opinion  is  likely,  sooner  or 
later,  to  move  in  such  a  direction.  The  Americans  are  a  practical 
people,  and  mere  fear  of  danger  will  not  be  sufficient  to  keep  them 
from  whatever  they  come  to  regard  as  a  practical  good.  They 
apparently  feel  that  they  are  able  to  cope  with  dangers,  when 
dangers  really  come.  There  can  be  small  doubt  that  had  Wash- 
ington not  declined,  his  "  re-election  for  life,"  to  which  Rochefou- 
cauld refers,  would  have  been  "possible."  And  should  another 
arise  like  him  —  some  great  hero  such  as  history  occasionally  gives 
to  nations  —  there  is  nothing  to  prevent  his  "re-election  for  life," 
so  far  as  the  Constitution  is  concerned. 


176  SOURCES   OF   THE    CONSTITUTION.        chap. 

that  the  great  neglected  fact  in  the  EngHsh  political 
system  was  the  government  of  England  by  a  committee 
of  the  legislature,  calling  themselves  the  Cabinet.  This 
is  exactly  the  method  of  government  to  which  George  III. 
refused  to  submit,  and  the  framers  of  the  American  Con- 
stitution take  George  III.'s  view  of  the  kingly  office  for 
granted.  They  give  the  whole  of  the  executive  govern- 
ment to  the  President,  and  they  do  not  permit  his  minis- 
ters to  have  a  seat  or  speech  in  either  branch  of  the 
legislature.  They  limit  his  power,  and  this  not,  how- 
ever, by  any  contrivance  known  to  modern  constitution- 
alism, but  by  making  the  office  of  President  terminable 
at  intervals  of  four  years.  If  Hamilton  had  lived  a  hun- 
dred years  later,  his  comparison  of  the  President  with 
the  king  would  have  turned  on  very  different  points. 
He  must  have  conceded  that  the  republican  functionary 
was  the  more  powerful  of  the  two."  ^ 

^  Maine,  Popular  Government,  211-214. 

"The  President  is,  beyond  doubt,  the  English  king,  modified  by 
the  necessities  of  a  state  of  things  in  which  hereditary  succession 
was  out  of  the  question,  and  in  which  even  a  life  term  of  office 
would  have  awakened  the  greatest  jealousy."  —  Freeman,  The  Eng- 
lish People  in  its  Three  Hotnes.,  375. 

"  The  organization  of  the  executive  department  of  the  new 
government  was  attended  with  great  difficulty.  In  the  teeth  of  the 
prevailing  prejudice  against  monarchy,  it  was  no  easy  task  to  devise 
an  acceptable  scheme  through  which  the  federal  chief  magistrate 
could  be  clothed  with  the  constitutional  attributes  of  an  English 
king.  And  yet  that  result  was  substantially  accomplished.  Although 
the  President  was  simply  a  magistrate  to  be  obeyed  within  the 
range  of  his  powers,  and  personally  liable  to  impeachment  if  he 
overstepped  them,  still  he  was  endowed  with  as  much,  if  not  more, 


VI.  THE  AMERICAN-  EXECUTIVE.  177 

The  foregoing  may  appear  strong  language.  But  the 
essential  truth  must  be  admitted.  It  will  not  do  to 
contend  in  opposition  to  this  truth,  that  certain  powers 
of  the  American  executive  are  common  to  the  executives 
of  many  nationalities,  for  the  American  has  developed 
from  its  original  through  distinctly  traceable  channels. 
Nor  will  it  be  sufficient  to  insist  upon  the  many  dif- 
ferences between  the  English  and  American  executives, 
for  the  points  of  agreement  are  none  the  less  real. 
Though  the  President  lacks  the  distinguishing  heredity 
and  pageantry  of  royalty,  yet  the  characteristic  powers 
he  holds  were  held  before  him  by  the  executive  of  the 
colonies,  and  of  the  home  land.  "  Assuming  that  there 
was  to  be  such  a  magistrate,  the  statesmen  of  the  Con- 
vention, like  the  solid,  practical  men  they  were,  did  not 
try  to  construct  him  out  of  their  own  brains,  but  looked 
to  some  existing  models.  They  therefore  made  an  en- 
larged copy  of  the  State  governor,  or,  to  put  the  same 
thing  differently,  a  reduced  and  improved  copy  of  the 
English  king."  ^ 

real  power  than  was  possessed  even  then  by  that  dreaded  original. 
The  elective  principle,  it  is  true,  was  substituted  for  hereditary  right, 
a  definite  term  of  office  was  prescribed,  and  all  the  pomp  and 
pageantry  of  power  was  sternly  cut  off,  and  yet  the  real  resem- 
blance which  remained  between  the  two  national  chiefs  was  too 
close  to  escape  the  enemies  of  the  Constitution,  who  bitterly  assailed 
it  on  that  ground." — Taylor,  Origin  and  Growth  of  English  Con- 
stitution, 69. 

^  Bryce,  American  Commonwealth,  I.  36. 


CHAPTER  VII. 

THE    JUDICIARY. 

THE  English  sovereign  anciently  exercised  judicial 
functions  which,  by  an  evolutionary  process,  have 
gradually  come  to  be  separated  from  his  executive  func- 
tions, and  deputed  to  a  permanent  body  of  judges, 
appointed  by  him,  but  independent  of  his  direction. 
During  the  Saxon  period,  the  kings  decided  cases  which 
otherwise  had  failed  in  obtaining  setdement,  and  after 
the  Norman  Conquest  they  continued  to  administer 
justice  in  person.^  Wilham  the  Conqueror,  whenever 
present  in  England,  held  great  courts  of  justice  at 
Christmas,  Easter,  and  Whitsuntide.  To  William  Rufus, 
the  barons  recommended  mercy  in  the  sentence  of 
minor  criminals  in  1096.  Henry  I.  summoned  Robert 
of  Beleseme  before  his  court,  charged  with  treason  under 
forty-five  articles  ;  and  other  cases,  criminal  and  civil, 
are  recorded  of  him.     Some  of  the  sayings  of  Henry  II. 

1  Even  queens  sat  in  court  in  early  Norman  times.  Queen  Ma- 
tilda, consort  of  the  Conqueror,  Queen  Maud,  consort  of  Henry  I., 
and  the  queen  consort  of  Henry  HI.,  are  recorded  as  having  done 
so.  Heming,  512;  Hist.  Mon.  Abingd..,  II.  116,  Rolls  Ser.;  Biglow, 
Placita   Anglo-Normannica,    99;     Spence,    Equit.    Jurisdiction, 

lOI,  n. 

178 


CHAP.  vn.  THE  yUDICIAR  Y.  179 

on  the  seat  of  judgment  have  come  down  to  \x%}  In- 
stances of  personal  decisions  are  narrated  of  John,  Henry 
III.,  Edward  I.,  and  Edward  II.  But  royal  hearings, 
always  and  necessarily  rare,  gradually  ceased.  Edward 
IV.  visited  the  Court  of  King's  Bench  in  person  to 
observe  its  procedure  ;  in  which,  however,  he  did  not 
share.-  When  James  I.  attended  a  trial,  and  desired 
to  take  part,  he  was  informed  by  the  judges,  that  he 
could  not  deliver  an  opinion.^  And  the  constitutional 
principle  has  long  since  been  recognized,  that  the  sover- 
eign, even  though  present,  is  not  entitled  to  "  determine 
any  case,  but  by  the  mouths  of  his  judges,  to  whom  he 
has  committed  the  whole  of  his  judicial  authority."* 

1  A  defendant  alleged,  in  a  case  tried  before  him  in  1454,  soon 
after  his  obtaining  the  crown,  that  a  charter  of  Henry  I.,  placed  in 
evidence,  had  been  improperly  gotten.  "  Per  oculos  Dei,"  ex- 
claimed the  king,  taking  the  charter  into  his  own  hands,  "  si  cartam 
hanc  falsatn  coniprobare  possess,  lucrum  mille  librarum  mihi  in 
Anglia  conferresT  Walter,  Abbott  of  St.  JMartin  of  Battle  v. 
Gilbert  de  Balliol :  Chron.  Monasterii  de  Bello,  106;  Biglow,  Placita 
Anglo-Xorinannica,  175.  In  a  case  over  a  land  franchise  between 
Baldwin,  Archbishop  of  Canterbury,  and  the  Abbot  of  St.  Edmund, 
conflicting  charters  were  presented;  upon  which  the  puzzled  mon- 
arch exclaimed,  "  Nescio  quid  dicam  :  nisi  tit  cartae  ad  invicem 
pugnenty  The  abbot  offering  to  submit  the  contention  to  the 
verdict  of  the  counties  of  Norfolk  and  Suffolk,  and  the  archbishop 
declining  the  offer,  the  king  arose  in  indignation,  and  left  the  court, 
with  the  words:  "  Qui  potest  capere  capiat.'"  Archbishop  of  Can- 
terbury V.  Abbot  of  St.  Edmund,  circ.  1 186;  Chron.  Jocelin  de 
Brakelonda,  37,  pub.  Camden  Soc;  Biglow,  Placita  Anglo- Nor- 
manica,  238. 

-  Stow,  Chronicles,  416. 

^  Blackstone,  Commentaries,  III.  41.         *  Coke,  .^.th  Inst.,  73. 


180  SOURCES    OF   THE    CONSTITUTION.        chap. 

The  national  legislature  of  England  also,  as  we  have 
seen,  possessed  judicial  powers.'  And  by  the  changes 
of  centuries  it  has  come  to  share  these  with  a  variety 
of  courts,  though  preserving  the  supreme  jurisdiction 
pertaining  to  the  House  of  Lords.  The  Witenagemot 
transmitted  its  judicial  functions  to  the  Norman  Great 
Council,  the  Curia  Regis.  But  at  least  from  the  time 
of  Henry  I.,  an  inner  body  —  an  offshoot  from  the 
larger,  yet  taking  to  itself  the  name  Curia  Regis-  —  ad- 
ministered judicial  and  financial  affairs,  under  the  king 
or  his  deputy,  the  chief  justiciar.^     Judges  made  circuits 

1  The  Codex  Diploniaticiis  prints  a  very  extended  list  of  charters 
recording  the  results  of  trials  by  the  Witenagemot.  The  docu- 
ments give  very  minute  information  as  to  the  nature,  process,  par- 
ties, and  causes,  with  place  and  date  of  the  gemot  at  which  each 
trial  was  held  and  the  names  of  those  who  presided. 

-  Hallam  (^Middle  Ages,  II.  423)  refers  to  the  confusing  applica- 
tion of  the  term  Curia  Regis.  It  was  used  to  designate  (i)  The 
Commune  Concilium,  or  National  Council  of  the  realm,  the 
Witenagemot  in  a  feudalized  form.  (2)  The  Ordinarium  Con- 
cilium, the  perpetual  or  select  council  for  judicial  and  adminis- 
trative purposes.  (3)  The  Court  of  King^s  Bench,  growing  out 
of  the  limited  tribunal  separated  from  this  last  by  Henry  II.,  in 
1178,  and  soon  after  acquiring  exclusively  the  denomination  "  Curia 
Regis." 

3  "As  the  highest  judicial  tribunal  in  the  realm,  the  Curia  Regis 
consisted  of  the  king,  sitting  to  administer  justice  in  person,  with  the 
advice  and  counsel  of  those  vassals  who  were  members  of  the  royal 
household  and  of  such  others  as  were,  on  account  of  their  knowl- 
edge of  law,  specially  appointed  as  judges.  In  the  absence  of  the 
king  his  court  was  presided  over  by  the  justiciar,  who  was  at  all 
times  the  supreme  administrator  of  law  and  finance.  ...  By  virtue 
of  special  writs,  and  as  a  special  favour,  the  king  could  at  his  pleasure 


vii.  THE  yUDICIARY.  181 

of  the  kingdom,  principally  for  fiscal,  but  also  for  judicial, 
purposes;  and  the  local  courts  of  each  county  —  them- 
selves outgrowths  of  the  old  folkmoots  —  were  thus 
brought   into   connection   with    the    national    tribunals.^ 

call  up  causes  from  the  local  courts  to  be  heard  in  his  own  court 
according  to  such  new  methods  as  his  advisers  might  invent. 
Through  the  issuance  of  these  special  writs,  the  king  became  prac- 
tically the  fountain  of  justice;  and  through  their  agency  the  new 
system  of  royal  law,  which  finds  its  source  in  the  person  of  the  king, 
was  brought  in  to  remedy  the  defects  of  the  old,  unelastic  system 
of  customary  law  which  prevailed  in  the  provincial  courts  of  the 
people." — Origin  and  Grozi'th  of  English  Constitution,  245,  246. 
See  Biglow,  History  of  Procedure  in  England ;  Reeves,  History  of 
English  Law,  etc. 

^  Taylor  has  admirably  condensed  the  facts.  "  In  the  course  of 
the  assessment  and  collection  of  the  revenue,  which  was  the  chief 
work  of  the  Curia  as  a  financial  body,  local  disputes  so  constantly 
arose  that  it  became  necessary  to  send  detachments  of  justices  to 
adjust  the  business  of  the  exchequer  in  each  shire.  As  early  as  the 
reign  of  Henr}'  I.,  officers  of  the  exchequer  were  frequently  sent 
through  the  country  to  assess  the  revenue;  and  in  the  reign  of 
his  grandson,  Henry  II.,  this  custom  was  enforced  with  svstematic 
regularity.  The  justices  while  thus  engaged  in  provincial  business 
sat  in  the  shiremoots,  where  judicial  work  soon  followed  in  the  path 
of  their  fiscal  duties.  In  11 76  the  kingdom  was  divided  into  six 
circuits,  to  each  of  which  were  assigned  three  justices,  who  are  now 
for  the  first  time  given  in  the  Pipe  Rolls  the  name  of  Justitiarii 
Itinerantes.  After  several  intermediate  changes  in  the  number  of 
the  circuits,  it  was  at  last  provided  by  Magna  Charta  that  two  jus- 
tices should  be  sent  four  times  each  year  into  each  shire  to  take  the 
assizes  ol  novel  disseisin,  inort  d^ancester,  and  darrien  presentment. 
The  provincial  visitations  of  the  justices  from  the  exchequer,  whose 
primary  object  was  financial,  thus  led  to  the  establishment  of  those 
judicial  visitations  which  have  ever  remained  an  abiding  feature  in 
English  judicature.     Through  these  visitations  was  established  that 


182  SOURCES   OF  THE    CONSTITUTION.        chai-. 

This  lesser  Curia  Regis  in  time  became  divided  into 
three  sections,  which,  in  the  latter  part  of  the  reign  of 
Henry  III.,  emerged  as  the  distinctive  courts  of  Ex- 
chequer, Common  Pleas,  and  King's  Bench,  each  charged 
with  its  own  portion  of  business.  The  hearing  of  excep- 
tional cases  was  still  reserved  to  the  inner  council,  and 
through  the  chancellor's  relation  to  such  cases  eventually 
arose  the  Court  of  Chancery.^     The  council  passed  its 

vitally  important  connection  between  the  strong  central  system  of 
administration  embodied  in  the  Norman  Curia  and  the  ancient  sys- 
tem of  local  freedom  embodied  in  the  Old  English  shiremoots."  — 
Origin  and  Gj'oivth  of  the  English  Consiilntion,  247,  248. 

Stubbs  says:  "The  visits  of  the  itinerant  justices  form  the  link 
between  the  Curia  Regis  and  the  shiremoot,  between  royal  and 
popular  justice,  between  the  old  system  and  the  new.  The  courts 
in  which  they  preside  are  the  ancient  county  courts,  under  new 
conditions,  but  substantially  identical  with  those  of  the  Anglo- 
Saxon  times."  —  Constitutional  History  of  England,  I.  678. 

The  itinerant  justices  were  for  a  long  time  active  in  extorting 
money  from  the  people  for  the  king's  use.  In  1242,  at  a  great 
council  assembled  by  Henry  III.,  the  barons  complained,  "Non 
cassaverunt  justitiarii  itinerantes  itinerare  per  omnes  partes.  Angliae 
tarn  de  placitis  forestae  quam  de  omnibus  aliis  placitis,  ita  quod 
omnes  comitatus  Angliae  et  omnia  hundreda  civitates  et  burgi,  et 
fere  omnes  villae  graviter  amerciantur;  unde  solummodo  de  illo 
itinere  habet  dominus  rex  vel  habere  debet  maximam  summam 
pecuniae,  si  persolvatur  et  bene  colligatur.  Unde  bene  dicunt  quod 
per  ilia  amerciamenta  et  per  alia  auxilia  prius  data,  omnes  de  regno 
ita  gravantur  et  depauperantur  quod  parum  aut  nihil  habent  in 
bonis."  —  Matt.  Paris,  582. 

1  "  The  chancellor,  who  at  a  later  period  entered  into  many  of 
the  rights  and  dignities  of  the  justiciar,  appears  in  history  very 
much  earlier.  The  name,  derived  probably  from  the  cancelli,  or 
screen  behind  which  the  secretarial  work  of  the  royal  household 


VII.  THE   yUDICfARY.  183 

powers  on  to  the  Trivy  Council,  which  continues  its 
higher  jurisdiction.^  And  thus  judicial  functions  of  the 
legislature,  actively  exercised  by  what  was  at  first  a 
sort  of  standing  committee,  came  to  be  subdivided  and 
put  in  operation  through  a  gradually  evolved  system 
of  courts,  —  the  legislature  itself  continuing  to.  exer- 
cise justice  in  what  is  now  the  House  of  Lords,  suc- 
cessor to  the  Witan.'-^  The  judicial  action  of  both  the 
Privy  Council  and  the  House  of  Lords  is  taken  in  our 

was  carried  on,  claims  a  considerable  antiquity;  and  the  offices 
which  it  denotes  are  various  in  proportion.  The  chancellor  of  the 
Carolingian  sovereigns,  succeeding  to  the  place  of  the  more  ancient 
referendarius,  is  simply  the  royal  notary;  the  archi-canccllarhis  is 
the  chief  of  a  large  body  of  such  officers  associated  under  the  name 
of  the  chancery,  and  is  the  official  keeper  of  the  royal  seal.  It  is 
from  this  minister  that  the  English  chancellor  derives  his  name  and 
function."  —  Stubbs,  Constitutiottal  History  of  England,  I.  398, 
399.  See  also  Waitz,  Deutsche  Vei-fassungs-Geschichte,  II.  409. 
For  etymology  of  the  word  "  chancellor,"  see  Campbell,  Lives  of 
the  Lord  Chancellors,  I.  I,  2. 

1  "  The  original  tribunal,  the  king's  ordinary  council,  retained  its 
undiminished  powers  throughout,  changing  at  various  times  and 
throwing  off  new  offshoots,  such  as  the  Court  of  Star  Chamber, 
until  it  has  reached  our  own  time  in  the  form  of  the  Judicial  Com- 
mittee of  the  Privy  Council."  —  Select  Charters,  24. 

-  "We  must  not  forget,"  says  Freeman,  "that  our  judicial  and 
parliamentary  institutions  are  closely  connected,  that  both  spring 
out  of  the  primitive  assemblies,  that  things  which  now  seem  so 
unlike  as  our  popular  juries  and  the  judicial  powers  of  the  House 
of  Lords  are  in  truth  both  of  them  fragments  of  the  judicial  powers 
which  Tacitus  speaks  of  as  being  vested  in  those  primitive  assem- 
blies. It  was  only  step  by  step  that  the  functions  of  judge,  juror, 
witness,  and  legislator  became  the  utterly  distinct  functions  which 
they  are  now."  —  Groivth  of  English  Constitution,  84. 


184  SOURCES   OF   THE    CONSTITUTION.        chap. 

day,  not  by  those  bodies  as  a  whole,  but  by  special  judi- 
cial personages,  —  in  the  former  by  the  "Judicial  Com- 
mittee," composed  of  judges  of  the  several  courts,  and 
in  the  latter  by  the  "  law  lords,"  i.e.  peers  who  are  or 
have  been  on  the  bench. 

Thus  by  slow  transfer  of  power  originally  belonging  to 
both  the  executive  and  the  legislature,  the  national  judiciary 
finally  emerged  into  definite  being,  and  became  a  charac- 
teristic feature  of  the  English  Constitution.  The  system, 
at  least  in  its  leading  and  essential  elements,  concerns 
the  present  inquiry.  For  from  it  the  American  judicial 
system  —  with  differences  of  detail  —  has  directly  come. 
The  process  of  derivation  has  been  first  through  the  crea- 
tion and  action  of  the  colonial  courts  and  judges,  and  the 
application  of  English  law  and  procedure  on  American 
soil ;  secondly,  through  the  direct  contact  of  the  colonies 
with  the  English  tribunals,  and  especially  with  the  Privy 
Council  as  an  imperial  supreme  court  for  all  Americans 
down  to  1776;  thirdly,  through  the  legal  literature  of 
England,  which  has  ever  been  regarded  and  utilized  by 
the  American  bar  as  its  own ;  and  lastly,  through  adap- 
tation from  English  models,  begun  in  the  Philadelphia 
Convention,  and  since  continued  by  Congress  in  dealing 
with  Article  III.  of  the  Constitution.^ 

1  Taylor  notes  this  well-known  identity  of  the  American  and 
English  judicial  systems.  "  So  far  as  [the  American]  judicial 
organization  is  concerned,  there  has  been  but  a  slight  departure 
from  the  ancient  original.  Such  differences  as  do  exist  are  rather 
differences  of  detail  than  of  organic  structure.  In  both  systems  the 
unit  of  local  judicial  administration  is  the  county,  where  all  causes, 


\ni.  THE   JUDICIARY.  185 

Not  only  is  the  judiciary  system  of  the  United  States 
derived  from  that  of  England,  but  even  the  co-ordinate 
and  independent  place  accorded  to  it  in  the  threefold 
division  of  government,  and  so  often  thought  a  novelty, 
is  taken  from  English  and  colonial  antecedents.  Refer- 
ring to  this.  Sir  Henry  Maine  obser\'es  :  "  It  may  be 
confidently  laid  down  that  neither  the  institution  of  a 
Supreme  Court,  nor  the  entire  structure  of  the  Constitu- 
tion of  the  United  States,  were  the  least  likely  to  occur 
to  anybody's  mind  before  the  publication  of  the  Esprit 
des  Lois.  .  .  .  The  Federalist  regards  the  opinions  of 
Montesquieu  as  of  paramount  authority,  and  no  opinion 
had  more  weight  with  its  writers  than  that  which  affirmed 
the  essential  separation  of  the  executive,  legislative,  and 
judicial  powers.     The  distinction  is  so    famihar  to   us, 

except  equity  and  probate  causes,  are  tried  in  the  first  instance 
according  to  the  course  of  English  customary  law,  subject  to  re\'ie\v 
in  a  central  appellate  court  modelled  after  the  great  courts  at  West- 
minster. It  is  not  the  ancient  county  court,  however,  that  is  the 
local  centre  of  judicial  administration.  In  America,  as  in  England, 
the  ancient  county  court  is  overshadowed  by  the  itinerant,  or  circuit 
court,  held  periodically  in  ever)-  county  by  the  itinerant  or  circuit 
judge  sent  to  preside  in  local  tribunals  by  State  authority.  In  every 
assize  or  circuit  court  held  where  English  law  prevails,  the  jury  of 
presentment  and  the  trial  jury  enter  as  component  parts  into  the 
structure  of  a  tribunal  which,  in  its  modern  form,  is  the  special 
possession  of  the  English  race.  Each  colony  started  out  by  adopting 
the  whole  body  of  English  statutory  and  customary  law,  so  far  as 
its  principles  could  be  adapted  to  their  changed  social  and  political 
conditions.  By  a  perusal  of  the  colonial  codes,  it  is  possible  to 
trace  the  beginnings  of  the  great  work  of  adaptation,  which  has  not 
yet  eliminated  all  the  obsolete  elements  of  the  ancient  system."  — 
Origin  and  Growth  of  the  English  Constitution,  47,  48. 


186  SOURCES  OF   THE    CONSTITUTION.        chap. 

that  we  find  it  hard  to  beheve  that  even  the  different 
nature  of  the  executive  and  legislative  powers  was 
not  recognized  till  the  fourteenth  century ;  but  it 
was  not  till  the  eighteenth  that  the  Esprit  des  Lois 
made  the  analysis  of  the  various  powers  of  the  state 
part  of  the  accepted  political  doctrine  of  the  civilized 
world.  Yet,  as  Madison  saw,  Montesquieu  was  really 
writing  of  England,  and  contrasting  it  with  France.  .  .  . 
The  fact  was,  that  in  the  middle  of  the  eighteenth  century 
it  was  quite  impossible  to  say  where  the  respective  prov- 
inces of  the  French  king,  and  of  the  French  parliament 
in  legislature,  and  still  more  of  the  same  authorities  in 
judicature,  began  and  ended.  To  this  indistinctness  of 
boundary  Montesquieu  opposed  the  considerable,  but 
yet  incomplete,  separation  of  the  executive,  legislative, 
and  the  judicial  powers  in  England,  and  he  founded  on 
the  contrast  his  famous  generalization."  ^ 

But  although  this  influence  of  Montesquieu  in  promot- 
ing the  independent  relation  of  the  judiciary  in  the 
American  Constitution  is  unquestionable,  the  Philadel- 
phia Convention  had  before  its  eyes  in  this,  as  in  other 
matters,  the  colonial  adaptation  of  English  usage  then  ex- 
isting in  the  States  of  which  the  new  nation  was  composed. 
And  the  testimony  of  the  Federalist  is  exceedingly  ex- 
plicit on  this  point.  For  after  stating  reasons  for  an 
independent  judiciary,  it  continues  :  "  These  considera- 
tions teach  us  to  applaud  the  wisdom  of  those  States 
which  have  committed  the  judicial  power  in  the  last 
1  Popular  Government,  21S-220. 


VII.  THE   JUDICIARY.  187 

resort,  not  to  a  part  of  the  legislature,  but  to  distinct  and 
independent  bodies  of  men.  Contrary  to  the  supposi- 
tion of  those  who  have  represented  the  plan  of  the  Con- 
vention in  this  respect  as  novel  and  unprecedented,  it  is 
but  a  copy  of  the  constitutions  of  New  Hampshire, 
Massachusetts,  Pennsylvania,  Delaware,  Maryland,  Wx- 
ginia.  North  Carolina,  South  Carolina,  and  Georgia,  and 
the  preference  which  has  been  given  to  these  models  is 
highly  to  be  commended."  ^ 

^Vhen  the  Convention  assembled  in  Philadelphia,  State 
courts  were  in  vigorous  operation,  but  nothing  had  yet 
been  done  to  supply  the  place  formerly  occupied  by  the 
English  Privy  Council  as  a  supreme  court  of  appeal 
common  to  all  the  colonies.  Under  any  truly  national 
constitution  a  national  judicature  was  a  necessity,  not 
only  for  ordinary  affairs,  but  also  for  those  national 
matters  which  in  the  days  of  colonial  dependence  had 
been  dealt  with  by  the  courts  of  England. 

What  the  Convention  did,  was  to  add  to  the  State 
courts  one  national  supreme  tribunal,  and  there  it 
stopped.  Other  classes  of  national  courts  were  contem- 
plated, but  the  creation  of  them  was  left  to  Congress. 
Article  III.  of  the  Constitution  reads :  "  The  judicial 
power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  minor  courts  as  the  Con- 
gress may,  from  time  to  time,  ordain  and  establish."  - 

1  Federalist,  No.  Sr. 

-  Constitution  of  the  United  States,  Art.  III.  Sec.  I.  Without 
discussion,  the  committee  of  the  whole,  in  the  Philadelphia  Conven- 


ISS  SOURCES   OF   THE    CONSTITUTION.        chap. 

The  present  national  courts  of  the  United  States  are, 
therefore,  the  creation  of  the  Constitution  directly,  in 
the  instance  of  the  Supreme  Court,  and  indirectly,  in 
that  of  the  minor  courts  established  under  the  provisions 
of  Article  III.  These  minor  courts  may  be  changed  or 
added  to  by  Congress  as  need  arises.  They  consist 
at  present  of  the  circuit  courts  of  appeal,  the  circuit 
and  district  courts,  and  the  Court  of  Claims,  as  national 
tribunals,  and  the  courts  of  the  District  of  Columbia  and 
of  the  territories  as  local  courts  under  national  control. 
The  State  courts  are  also  employed  for  such  national 
cases  as  they  are  capable  of  dealing  with.  By  the  pres- 
ent condition  of  the  law,  many  cases  within  reach  of  the 
national  judicial  power  are  left  wholly  to  the  State  courts, 
while  in  other  cases,  the  State  courts  are  allowed  a  juris- 
diction concurrent  with  that  of  the  Federal  courts  ;  their 
judgments  on  questions  of  Federal  law  being  subject  to 
final  review  in  the  national  Supreme  Court.  The  full 
purpose  of  the  Federal  jurisdiction  is  met,  if  the  case, 

tion,  voted  for  a  national  judiciary  to  be  composed  of  one  Supreme 
Court  and  inferior  courts.  Later  on,  dissatisfaction  was  expressed, 
tliat  in  view  of  the  fact  that  the  States  already  possessed  a  full  sys- 
tem of  inferior  courts,  there  should  be  forced  upon  them,  in  addition, 
a  body  of  national  inferior  trilaunals.  Madison  urged,  however,  that 
an  effective  judiciary  establishment  for  the  nation,  commensurate 
with  the  national  legislative  authority,  was  essential.  In  this  posi- 
tion he  was  sustained  by  Wilson  and  Dickinson.  But  the  original 
motion  was  stricken  out  by  a  vote  of  six  States  to  four.  A  compro- 
mise suggested  by  Dickinson  was  then  agreed  to,  providing  for  the 
establishment  of  such  minor  courts  as  Congress  should  decide  upon. 
—  See  Elliot,  Debates,  V.  155,  159,  i6o. 


VII.  THE  yUDICr.lRY.  189 

though  heard  first  in  a  State  court,  may  be  removed,  at 
the  option  of  the  parties,  for  final  decision  in  the  Federal 
courts.  Congress  has  consequently  left  the  parties  at 
liberty,  with  few  exceptions,  to  bring  their  suits  in  the 
State  courts,  no  matter  what  the  questions  involved. 
But  at  the  same  time,  it  has  protected  the  Federal 
authority,  by  providing  for  a  transfer  to  the  Federal 
courts,  either  before  or  after  judgment,  of  all  cases  to 
which  the  Federal  judicial  power  extends.^ 

Not  only  do  the  State  courts  —  successors  of  the 
colonial  courts  —  thus  share  in  the  national  judicature, 
but  the  national  courts  apply  State  law  whenever  appli- 
cable to  cases  coming  before  them.  And  though  the 
nation  itself  has  no  common  law,  its  courts  constantly 
administer  the  English  common  law  of  the  States  where 
it  is  proper  to  do  so.  In  this  way  the  law  applied  by 
the  national  courts  is,  first  of  all,  that  of  the  Constitu- 
tion and  of  enactments  of  Congress,  and  secondly 
that  which  has  grown  up  from  English  antecedents  in 
the  original  thirteen  States,  or  which  has  been  adopted 
in  the  later  States,  formed  more  or  less  closely  upon 
the    older   models.      The  jurisprudence    regulating   the 

^  As  Robinson  expresses  it,  "There  is  no  hard  and  fast  line  divid- 
ing the  jurisdiction  of  the  Federal  courts  from  that  of  the  State 
courts."  —  Publications  of  the  American  Academy  of  Political  and 
Social  Science,  No.  9,  p.  236.  This  striking  peculiarity  of  the 
American  judicial  system  —  its  flexibility  —  seems  to  have  been 
wholly  missed  by  De  Tocqueville.  lie  admits  "ce  qu'un  etranger 
comprend  avec  le  plus  de  peine  aux  Etats-Unis,  c'est  I'organisa- 
tion  judiciare."  —  Detnocratie  en  Ameriijue  I.  163. 


190  SOUKCRS    OF   THK    CONSTITUTION.         <:hap. 

procedure  and  moulding  the  decrees  of  the  American 
Supreme  Court  is  Enghsh  jurisprudence,  and  it  has  thus 
become  a  new  source  of  both  American  and  EngHsh 
law.  The  system  of  inferior  Federal  courts  is  essentially 
a  reproduction  of  the  English  itinerant  system  of  judica- 
ture. In  both  civil  and  criminal  cases  the  Federal 
courts  proceed  according  to  the  English  customary  law, 
while  in  equity  and  admiralty  causes  they  chng  with 
like  tenacity  to  the  general  body  of  English  jurispru- 
dence.^ 

An  impression  that  the  Supreme  Court  was  created 
to  be  the  "guardian"  of  the  Constitution,  by  inter- 
preting it,  has  often  called  forth  admiration  for  what 
has  been  regarded  a  most  novel  contrivance  of  the 
Philadelphia  Convention.  Even  so  acute  a  writer  as 
Sir  Henry  Maine  assures  us,  that  "  there  is  no  exact 
precedent  for  it  either  in  the  ancient  or  in  the  modern 
world."-  Yet  words  describing  such  a  function  of  the 
court  are  not  to  be  found  in  the  Constitution  itself,  and 
the  procedure  which  really  exists  is  neither  of  recent  date 
nor  without  historical  precedent.  In  deciding  constitu- 
tional questions,  the  Supreme  Court  interprets  the  law  in 
accordance  with  principles  that  have  long  governed  the 
courts  of  England.  For  when  an  English  judge  finds 
conflict  between  an  act  of  Parliament  and  a  judicial 
decision,  he  sets  aside  the  decision,  as  of  an  authority 
inferior  to  that  of  the  act ;   and  if  two   parliamentary 

1  See  Origin  and  Growth  of  the  English  Constitution,  74. 
-  Popular  Government,  218. 


VII.  THE  JUDTCIARY.  191 

acts  conflict,  the  earlier  is  set  aside  as  superseded  by 
the  later  one,  —  the  court  interpreting  the  law,  simply 
by  determining  what  is  law  as  distinguished  from  what 
is  not.  The  range  of  this  English  usage  was  somewhat 
amplified  in  the  colonies,  owing  to  the  fact,  that  instead 
of  Parliament,  the  colonial  courts  had  legislatures  to  deal 
with,  which  acted,  in  most  instances,  underwritten  charters 
limiting  their  powers,  —  as  also  under  the  general  domi- 
nation of  the  home  government.  The  colonial  judiciary 
did  not  hesitate  to  adjudge  a  local  statute  invalid,  if 
its  enactment  could  be  shown  to  have  exceeded  powers 
conferred  by  charter,  —  and  the  Privy  Council,  in  the 
capacity  of  a  supreme  court  for  the  colonies,  decided 
in  like  manner  conflicts  between  laws.  When  State 
constitutions  succeeded  to  the  charters,  the  process 
was  continued  by  the  State  courts  in  cases  showing  con- 
flict between  statutes  and  the  new  constitutions  judi- 
cially interpreted.'  The  national  government,  with  a 
constitution  of  its  own,  created  an  element  of  superior 
law,  in  conflict  with  which  not  only  State  but  national 

1  The  first  cases  after  the  Revolution,  in  which  legislative  enact- 
ments were  declared  unconstitutional  were  those  of  Trezett  v. 
IVeeden,  in  1786,  and  Bayard  v.  Singleton,  in  1789.  The  first 
mentioned  was  decided  in  Rhode  Island,  where  the  colonial  char- 
ter still  did  service  as  the  State  constitution.  Cooley  observes, 
regarding  it,  that  it  "  is  worthy  of  note  that  the  first  case  in  which 
a  legislative  enactment  was  declared  unconstitutional  and  void,  on 
the  ground  of  incompatibility  with  the  constitution  of  the  State, 
was  decided  under  one  of  these  royal  charters."' —  Constitutional 
Limitations,  36,  n.  i. 


192  SOURCES   OF   THE    CONSTITUTION.         chap. 

enactments  of  lesser  authority  are  nullified.'  All  that 
the  judiciary  does  in  England,  and  all  that  it  does  in 
the  States,  and  in  the  courts  of  the  United  States,  is  to 
uphold  the  authority  of  what  it  decides  to  be  the  higher 
law,  as  against  all  lesser  laws  or  judicial  decisions.  What 
therefore  has  been  supposed  to  be  the  most  unique 
feature  of  the  /\merican  Supreme  Court  is  really  only 
another  adaptation  from  the  past,  and  rests  upon  colonial 
and  English  precedents.- 

1  "  Sir  Henry  Maine  speaks  of  the  Supreme  Court  as  a  '  virtually 
unique  creation  of  the  founders  of  the  Constitution.'  But  it  is 
.  .  .  unique  rather  in  position  than  in  form.  There  were  supreme 
courts  in  many  of  the  States,  forming  a  separate  branch  of  govern- 
ment, with  judges  chosen  for  good  behaviour,  and,  in  one  State 
at  least,  in  the  manner  prescribed  by  the  Federal  Constitution. 
Even  in  respect  to  constitutional  importance,  we  find  a  precedent 
in  the  State  courts;  for  Gerry,  in  maintaining  that '  the  judiciary  would 
have  a  sufficient  check  against  encroachments  on  their  own  depart- 
ment by  their  exposition  of  the  laws,  which  involved  a  power  of 
deciding  on  their  constitutionality,'  reminded  the  Convention  that 
'  in  some  States  the  judges  had  actually  set  aside  laws  as  being 
against  the  constitution.'  "  —  Publications  of  the  Ai7ierican  Academy, 
No.  9,  p.  241. 

-  "  There  is  a  story  told  of  an  intelligent  Englishman  who, 
having  heard  that  the  Supreme  Federal  Court  was  created  to  pro- 
tect the  Constitution,  and  had  authority  given  it  to  annul  bad  laws, 
spent  two  days  in  hunting  up  and  down  the  Federal  Constitution 
for  the  provisions  he  had  been  told  to  admire.  No  wonder  he  did 
not  find  them,  for  there  is  not  a  word  in  the  Constitution  on  the 
subject.  .  .  .  The  so-called  '  power  of  annulling  an  unconstitutional 
statute  '  is  a  duty  rather  than  a  power,  and  a  duty  incumbent  on 
the  humblest  State  court,  when  a  case  raising  the  point  conies  be- 
fore it,  no  less  than  on  the  Supreme  Federal  Court  at  Washington. 
\Vhen,  therefore,  people  talk,  as  they  sometimes  do,  even  in  the 


VII.  THE   JUDICIARY.  193 

The  judges  of  England  receive  their  appointment 
from  the  sovereign.  Judges  of  the  Supreme  Court  of 
the  United  States  are  appointed  by  the  President,  with 
consent  of  the  Senate,  under  the  provisions  of  Article 
II.  Section  2,  and  judges  of  inferior  national  courts  in 
hke  manner,  under  the  general  clause  of  the  same  arti- 
cle, which  empowers  the  executive  to  name  "  all  other 
officers  of  the  United  States  whose  appointments  are 
not  herein  otherwise  provided  for."  ^  In  the  Phila- 
delphia Convention  a  proposition  at  first  prevailed  that 
the  Supreme  Court  judges  should  be  appointed  by  the 
Senate,  but  at  a  later  session,  upon  the  report  of  a  com- 
mittee, the  present  provision  was  adopted  by  unanimous 
vote.-'     The  States,  in  more  recent  times,  have  made  the 

United  States,  of  the  Supreme  Court,  as  '  the  guardian  of  the 
Constitution,'  they  mean  nothing  more  than  that  it  is  the  final  court 
of  appeal,  before  which  suits  involving  constitutional  questions  may 
be  brought  up  by  the  parties  for  decision.  In  so  far  the  phrase  is 
legitimate.  But  the  functions  of  the  Supreme  Court  are  the  same 
in  kind  as  those  of  all  other  courts,  State  as  well  as  Federal.  Its 
duty  and  theirs  is  simply  to  declare  and  apply  the  law;  and  where 
any  court,  be  it  a  State  court  of  first  instance,  or  the  Federal  court 
of  last  instance,  finds  a  law  of  lower  authority  clashing  with  a  law 
of  higher  authority,  it  must  reject  the  former,  as  being  really  no 
law,  and  enforce  the  latter."  —  American  Commomuealth,  I.  246, 
247. 

^  Constitution  of  the  United  States,  Art.  II.  Sec.  2. 

-  After  the  discussion  in  the  Philadelphia  Convention  over  the 
mode  of  appointing  judges,  and  a  preliminary  decision  that  the 
Senate  should  have  the  power  (see  Elliot,  Debates,  V.  188),  Mr. 
Gorham  "  suggested  that  the  judges  be  appointed  by  the  executive, 
with  the  advice  and  consent  of  the  second  branch,  in  the  mode 


194  SOURCES    OF   THE    CONSTITUTION.        chap. 

office  of  judge  depend  very  generally  upon  election  by 
the  legislature,  or  even  by  the  people.  But  the  national 
judges  are  still  appointed  by  the  executive. 

By  legal  theory,  as  we  have  seen,  English  judges  repre- 
sent the  sovereign  in  the  dispensation  of  justice,  and 
accordingly  their  commissions  were  formerly  limited  to 
such  terms  of  office  as  the  crown  might  prescribe.  This 
control  of  tenure  proved  to  be  dangerous  to  public  liber- 
ties, through  liability  of  miscarriage  of  justice  from 
political  interest ;  and  there  were  occasionally  shameful 
compliances  by  judges  with  the  wishes  of  the  king,  and 
involving  flagrant  violation  of  the  rights  of  the  subject. 
In  the  time  of  Lord  Coke,  Barons  of  the  Exchequer 
were  appointed  to  hold  office  during  good  behaviour, 
i.e.  practically  for  life,  —  other  judges  still  holding  dur- 
ing royal  pleasure.  Until  the  accession  of  William  and 
Mary,  it  was  in  the  power  of  the  sovereign  to  select 
which  tenure  he  might  prefer,  — durante  bene  placito,  or 
quamdiu  bene  se  gesserint.  The  Act  of  Settlement  of 
that  reign  stipulated,  "  that  .  .  .  judges'  commissions 
be  made  quamdiu  se  bene  gesserint,  and  their  salaries 
ascertained  and  established,  but  upon  the  address  of 
both  houses  of  Parliament,  it  may  be  lawful  to  remove 
them."  ^     Commissions  were  still  held  to  expire  at  the 

prescribed  by  the  constitution  of  Massachusetts."  This  was  finally 
agreed  to,  as  having  been  "  ratified  by  the  experience  of  a  hundred 
and  forty  years."'  See  Elliot,  Debates,  V.  328,  330;  Constitution  of 
Massachusetts,  1780,  Pt.  II.  Ch.  II.  Sec.  i,  Art.  IX. 

1  13  Will.  III.  c.  2,  III.  7.  Campbell  says:  "It  was  not  until 
after  the  Revolution  of  168S,  which  placed  Dutch  William  on  the 


VII.  THE  JUDICIARY.  195 

king's  death.  But  one  of  the  earliest  acts  of  George 
III.  was  to  complete  the  independence  of  the  judiciary 
by  providing  that  judges  should  remain  in  ofifice  during 
good  behaviour,  notwithstanding  any  demise  of  the  crown, 
and  that  their  full  salaries  should  be  secured  during  the 
continuance  of  their  commissions. 

In  the  Constitutional   Convention   at    Philadelphia   it 
was  proposed  to  make  judges  removable  by  the  Presi- 

throne,  that  any  permanent  check  was  placed  upon  the  power  of 
removal;  and  it  was  not  until  the  reign  of  George  III.  that  the 
present  system  was  introduced,  under  which  judges  hold  office  during 
good  behaviour.  All  this  was  settled  in  the  Dutch  republic  two 
centuries  before.  .  .  .  The  supreme  judges  of  the  High  Court  of 
Appeals  at  The  Hague,  nominated  by  the  Senate,  and  confirmed 
by  the  Stadtholder,  executed  their  functions  for  life,  or  so  long  as 
they  conducted  themselves  virtuously  in  their  high  office."  —  Puri- 
tan in  Holland,  England,  and  America,  II.  450.  However  this  be, 
the  fact  remains,  that  America  received  these  matters  from  and 
through  England,  whether  William  III.  is  concerned  or  George  III. 
As  to  the  action  of  George  III.,  see  King's  Message,  March  3d, 
1 761;  I  Geo.  III.  c.  23;  Walpole,  Memoirs,  I.  41;  Cook,  History 
of  Party,  II.  400.  A  precedent  in  favour  of  the  establishment  of 
an  independent  judiciary  long  before  the  time  of  "Dutch  William," 
is  the  statute  of  Alfonso  V.  of  Aragon,  in  1442,  providing  that 
judges  should  remain  such  for  life,  they  being  removable  only  on 
sufficient  cause  by  the  king  and  Cortes  combined.  See  Prescott, 
History  of  Ferdinand  and  Isabella,  I.  108,  Intro.  Sec.  2,  p.  74, 
5th  ed.,  Lond.  1849.  Was  the  Dutch  usage  influenced  by  Spain, 
through  Spanish  relation  to  the  Netherlands?  We  have  suffi- 
cient light  on  the  direct  cause  of  action  in  the  Philadelphia 
Convention,  from  the  remark  of  Hamilton  in  the  Federalist,  No.  78, 
in  which  he  says,  speaking  of  tenure  of  judges  during  "  good 
behaviour,"  that  it  was  a  thing  "  conformable  to  the  most  approved 
of  the  State  constitutions." 


196  SOURCES   OF   THE    CONSTITUTION.        chap. 

dent  upon  the  application  of  both  houses  of  Congress. 
The  circumstances,  however,  were  not  the  same  as  those 
which  gave  rise  to  the  similar  provision  in  the  Act  of 
Settlement,  and  the  proposition  failed  of  adoption.  The 
Constitution  of  the  United  States  reads  :  "  The  judges 
both  of  the  superior  and  inferior  courts  shall  hold  their 
offices  during  good  behaviour,  and  shall  at  stated  times 
receive  for  their  services  a  compensation,  which  shall  not 
be  diminished  during  their  continuance  in  office."  ^ 

^  Constitution  of  the  United  States,  Art.  III.  Sec.  i.  The  Feder- 
alist, No.  79,  notes  that  "  in  the  general  course  of  human  nature, 
a  power  over  a  man's  substance  amounts  to  a  power  over  his  will." 
Chief  Justice  Taney  in  a  letter  of  February  15,  1863,  objected  to  a 
national  tax  applying  to  justices  of  the  Supreme  Court,  because  it 
was  an  unconstitutional  diminution  of  their  salaries.  This  letter 
was  recorded  in  the  minutes  of  the  Supreme  Court  by  an  order  of 
the  court  of  March  10,  1863.  See  Tyler,  Life  of  Taney,  432. 
Hamilton,  in  the  Federalist,  No.  78,  points  out  that  "  the  complete 
independence  of  the  courts  of  justice  is  peculiarly  essential  in  a 
limited  constitution."  Story  declares,  with  reference  to  compensa- 
tion, "  without  this  provision  the  other,  as  to  tenure  of  office,  would 
have  been  utterly  nugatory,  and,  indeed,  a  mere  mockery."  —  Com- 
mentaries on  Constitution  of  the  United  States,  II.  424,  §  1628. 
Tucker,  treating  of  this  clause  of  the  Constitution  says  :  "  Whatever 
has  been  said  by  Baron  Montesquieu,  De  Lolme,  or  Judge  Black- 
stone,  or  any  other  writer,  on  the  security  derived  to  the  subject 
from  the  independence  of  the  judiciary  of  Great  Britain,  will  apply 
at  least  as  forcibly  to  that  of  the  United  States.  We  may  go  fur- 
ther. In  England,  the  judiciary  may  be  overwhelmed  by  a  com- 
bination between  the  executive  and  the  legislature.  In  America, 
...  it  is  rendered  absolutely  independent  of,  and  superior  to,  the 
attempts  of  both  to  control  or  to  crush  it.  First,  by  the  tenure  of 
office,  which  is  during  good  behaviour;  these  words  (by  a  long 
train  of  decisions  in  England,  even  as  far  back  as  the  reign  of 


VII.  THE  JUDICIARY.  197 

In  Section  2,  Article  III.,  of  the  Constitution,  are  de- 
scribed the  powers  of  the  national  judiciary.  "The 
judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  Constitution,  the  laws  of  the  United 
States,  and  treaties  made  or  which  shall  be  made  under 
their  authority ;  to  all  cases  affecting  ambassadors,  other 
public  ministers  and  consuls ;  to  all  cases  of  admiralty 
and  maritime  jurisdiction  ;  to  controversies  to  which  the 
United  States  shall  be  a  party ;  to  controversies  between 
two  or  more  States ;  between  a  State  and  the  citizens 
of  another  State  ;  between  citizens  of  different  States  ; 
between  citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States,  and  between  a  State,  or  the 
citizens  thereof,  and  foreign  states,  citizens,  and  subjects. 

"In  all  cases  affecting  ambassadors,  or  other  public 
ministers  and  consuls,  and  those  in  which  a  State  shall 
be  a  party,  the  Supreme  Court  shall  have  original  juris- 
diction. In  all  other  cases  before  mentioned  the  Supreme 
Court  shall  have  appellate  jurisdiction,  both  as  to  law 
and  fact,  with  such  exceptions,  and  under  such  regula- 
tion, as  the  Congress  shall  make."  ^ 

The  very  first  words  of  this  section,  "  the  judicial  power 
shall  extend  to  all  cases,"  imposes  upon  the   national 

Edward  III.)  in  all  commissions  and  grants,  public  or  private,  im- 
parting an  office,  or  estate,  for  the  life  of  the  grantee,  determinable 
only  by  his  death  or  breach  of  good  behaviour.  Secondly,  by  the 
independence  of  the  judges  in  respect  of  their  salaries,  which  can- 
not be    diminished,"  etc. — Tucker's   Blackstone,    Commentaries, 

App.  353,  354- 

^  Constitution  of  the  United  States,  Art.  III.  Sec.  2. 


198  SOURCES   OF   THE    CONSTITUTION.        chap. 

judges  a  mode  of  action  which  is  of  Enghsh  origin. 
English  courts  decide  the  issue  of  actual  disputes  only, 
and  never  lay  down  a  general  proposition  except  as 
arising  from  a  "  case,"  brought  before  them  for  settle- 
ment. The  success  of  the  Supreme  Court  of  the  United 
States  is  largely  a  result  of  following  this  method  of 
determining  questions  of  constitutionality  and  unconsti- 
tutionality. The  process  is  slower,  but  it  is  freer  from 
chance  of  political  pressure,  and  far  less  provocative 
of  jealousy  than  would  be  the  presentation  of  abstract 
and  emergent  political  propositions  to  a  judicial  tribunal; 
and  yet  this  latter  process  is  what  a  European  foreigner 
thinks  of  when  he  contemplates  a  court  of  justice  decid- 
ing an  alleged  violation  of  a  constitutional  rule  or 
principle. 

Thus  also  the  rest  of  the  same  sentence  of  this 
second  section  of  Article  III.  refers  to  legal  usages  of 
the  mother-land:  "The  judicial  power  shall  extend  to 
all  cases  in  law  and  equity,  arising  under  the  Constitu- 
tion, laws,  and  treaties  of  the  United  States,  and  treaties 
made  or  which  shall  be  made  under  their  authority."  ^ 

1  Constitution  of  the  United  States,  Art.  III.  Sec.  2.  "The  equity 
jurisdiction  of  the  courts  of  the  United  States  is  independent  of  the 
local  law  of  any  State,  and  is  the  same  in  nature  and  extent  as  the 
equity  jurisdiction  of  England  from  which  it  is  derived." —  Gordon 
V.  Hobart,  Sumner,  II.  401. 

Mr.  Justice  Miller,  of  the  United  States  Supreme  Court,  forcibly 
says:  "Not  only  did  the  framers  of  the  new  Constitution  follow  as 
well  as  they  might  the  general  polity  of  the  English  system,  but  they 
evinced  an  ardent  desire  to  preserve  the  principles  which  had  been 
accepted  as  part  of  the  general  administration  of  the  law  among  our 


VII.  THE   JUDICIARY.  199 

Mr.  Justice  Story  asks  :  "  What  is  to  be  understood  by 
'cases  in  law  and  equity,'  in  this  clause?  Plainly,  cases 
at  common  law,  as  contradistinguished  from  cases  in 
equity,  according  to  the  known  distinction  in  the  juris- 
prudence of  England,  which  our  ancestors  brought  with 
them  upon  their  immigration,  and  with  which  all  the 
American  States  were  familiarly  acquainted.  Here,  then, 
at  least,  the  Constitution  of  the  United  States  appeals  to, 
and  adopts  the  common  law,  to  the  extent  of  making  it 
a  rule  in  the  pursuit  of  remedial  justice  in  the  courts  of 
the  Union.  If  the  remedy  must  be  in  law,  or  in  equity, 
according  to  the  course  of  proceedings  at  the  common 
law  in  arising  under  the  Constitution,  laws,  and  treaties 
of  the  United  States,  it  would  seem  irresistibly  to  follow, 

ancestors.  This  is  shown  in  many  of  the  provisions  of  the  Consti- 
tution. Among  others,  the  article  concerning  the  judicial  powers  of 
the  new  government,  establishes  its  jurisdiction  as  extending  to  all 
cases  in  admiralty,  and  in  law,  and  in  equity,  thus  recognizing  the 
English  separation  of  these  three  classes  of  legal  controversies  as 
being  governed  by  a  separate  jurisdiction.  At  least  such  has  been 
the  construction  placed  upon  the  instrument  by  the  courts  of  the 
country  without  much  question.  It  has  been  repeatedly  decided 
that  the  jurisdiction  in  equity,  which  was  a  very  peculiar  one  under 
the  English  system  of  legal  administration,  remains  in  the  courts  of 
the  United  States  as  it  was  at  the  time  they  separated  from  that 
country,  and  that  one  of  the  distinctive  features  of  the  difference 
between  law  and  equity  —  namely,  that  at  law  there  is  a  right  to  a 
trial  by  jury,  and  in  equity  there  is  none  —  has  continued  to  the  pres- 
ent day."  —  Lectures  on  Constitution,  4S8.  Judge  Cooley,  referring 
to  modern  English  usages,  points  to  the  effect  of  the  jurisdiction  acts 
of  1873  and  1875  '  ^^^'^  of  change  in  usage  in  certain  States  of  the 
American  Union.     Cooley's  Blackstone,  II.  Bk.  III.  454,  n.  11. 


200  SOURCES   OF   THE    CONSTITUTrON.        chai>. 

that  the  principles  of  decision,  by  which  these  remedies 
must  be  administered,  must  be  derived  from  the  same 
source.  Hitherto  such  has  been  the  uniform  interpreta- 
tion and  mode  of  administrating  justice  in  civil  cases  in 
the  courts  of  the  United  States  in  this  class  of  cases."  ^ 

The  seemingly  American  characteristic  of  the  jurisdic- 
tion of  national  courts  over  controversies  between  States, 
had  its  origin  in  the  colonial  custom,  by  which  disputes 
between  one  colony  and  another  —  which  frequently 
arose  before  the  War  of  Independence  —  were  adjudi- 
cated by  the  Privy  Council.  Such  a  case  between  Massa- 
chusetts and  New  Hampshire  was  settled  by  the  Privy 
Council  in  1679,  ^'^^  one  between  New  Hampshire  and 
New  York  in  1764.  In  the  case  of  Pennsylvania  v.  Lord 
Baltimore,  the  jurisdiction  involved  was  recognized  by 
Lord  Hardwicke  in  the  most  deliberate  manner.  And 
Blackstone  thus  states  the  law  of  the  time  :  "  Whenever 
a  question  arises  between  two  provinces  in  America  or 
elsewhere,  as  concerning  the  extent  of  their  charters  and 
the  like,  the  king  in  his  council  exercises  original  juris- 
diction therein  upon  the  principles  of  feudal  sover- 
eignty." ^  It  was  to  take  the  place  of  this  former 
jurisdiction  of  the  crown,  that  the  Constitution  provided, 
"  In  all  cases  ...  in  which  a  State  shall  be  party,  the 
Supreme  Court  shall  have  original  jurisdiction."^ 

1  Comvientaries  on  the  Constitution  of  the  United  States,  II.  436. 

2  Commentaries,  I.  231. 

^  Constitution  of  the  United  States,  Art.  III.  Sec.  2.  "  In  extend- 
ing the  Federal  judicial  power  to  cases  between  two  or  more  States, 


VII.  THE  JUDICIARY.  201 

It  may  be  said  in  general,  that  the  subjects  coming 
within  the  reach  of  the  federal  courts,  and  the  method 
of  dealing  with  them,  are  very  largely  of  a  character 
familiar  to  EngHsh  law.  Powers  which  inhere  in  the 
British,  or  were  exercised  in  the  colonial,  courts,  are  put 
into  operation  by  the  present  tribunals  to  the  extent  of 
their  jurisdiction.  Customary  writs  are  issued.  Forms 
and  procedure  bear  abundant  evidence  of  old  moulding. 
In  fact,  notwithstanding  elements  of  differentiation,  the 
entire  American  judicial  and  legal  system,  both  State  and 
national,  is  so  essentially  and  confessedly  of  English 
origin,  that  consideration  in  minute  detail  is  superfluous.^ 
Perhaps  no  proof  could  be  more  to  the  point,  than  that 
the    Cojnmentai'ies  of  Sir  William  Blackstone  are   still 

the  Convention  followed  the  example  of  the  Articles  of  Confedera- 
tion, which,  although  establishing  no  courts,  proNnded  that  the  United 
States  in  Congress  assembled  should  be  the  last  resort  on  appeal  in 
all  disputes  and  differences  between  two  or  more  States."  —  Publica- 
tions of  the  American  Academy,  No.  9,  p.  234. 

^  Douglas  Campbell  {Puritan  in  Holland,  England,  and 
America,  I.  62)  says  of  this :  "  As  the  colonies  grew,  their  juris- 
prudence naturally  developed  with  them,  and  after  they  became 
independent  States,  their  development  was  much  more  rapid.  New 
law  was  required  to  meet  new  conditions  of  society.  Sometimes 
the  want  was  supplied  by  enactments  of  the  legislature,  at  others  by 
what  Bentham  aptly  called  judge-made  law,  the  creation  of  the 
courts.  The  result  is,  that  the  legal  system  of  America  has  changed 
about  as  much  in  the  last  two  centuries  as  the  face  of  the  country 
itself.  In  England,  too,  the  same  change  has  been  going  on,  in 
much  the  same  directions,  and  from  the  same  causes."  Yet  even 
he  admits  (p.  63)  :  "  England  and  America  have,  to-day,  much  the 
same  legal  principles." 


202  SOURCES   OF  THE   CONSTITUTION.         chap. 

"  the  best  book  in  which  to  take  a  comprehensive  view 
of  the  rudiments  of  EngUsh  and  American  law." '  And 
this  legal  influence  is  not  merely  a  thing  of  the  past,  but 
continuous.  "  It  is  one  of  the  links  which  best  serves  to 
bind  the  United  States  to  England.  The  interest  of  the 
higher  class  of  American  lawyers  in  the  English  law,  bar, 
and  judges  is  wonderfully  fresh  and  keen.  An  English 
barrister,  if  properly  authenticated,  is  welcomed  as  a 
brother  of  the  art,  and  finds  the  law  reports  of  his  own 
country  as  sedulously  read  and  as  acutely  criticised  as  he 
would  in  the  Temple."" 

Referring  to  the  next  chapter,  the  provision  in  Article 
III.  for  trial  by  jury  in  criminal  cases,  we  may  consider 
the  law  of  treason,  which  concludes  the  Article.  Of  the 
action  of  the  Convention  regarding  this  law.  Story  re- 
marks :  "  They  have  adopted  the  very  words  of  the  statute 
of  treason  of  Edward  III.,  and  thus  by  implication,  in 
order  to  cut  off  at  once  all  chances  of  arbitrary  con- 
structions, they  have  recognized  the  well-settled  interpre- 
tation of  these  phrases  in  the  administration  of  criminal 
law  which  has  prevailed  for  ages."^  The  Enghsh  judges 
originally  were  left  to  determine  for  themselves,  by 
rules  of  the  common  law,  somewhat  vague  in  character, 
what  was   treason   and   what   was   not.     Injustice  often 

'  Cooley's  Blackstone,  Commentaries,  I.,  preface,  p.  v.  This 
statement  comes  from  the  pen  of  the  leading  legal  writer  of  the 
present  day  in  the  United  States. 

2  Bryce,  American  ComtJionzveallh,  II.  491. 

3  Commentaries  on  the  Constitution  of  the  United  States,  II.  555, 
§  1799- 


VII.  THE  JUDICIARY.  203 

resulted.  And  complaints  and  petitions  were  put  forth 
from  time  to  time  by  the  House  of  Commons  calling 
attention  to  the  abuse.  Finally,  in  1352,  a  petition  was 
presented,  the  royal  reply  to  which,  entitled  "  A  Declara- 
tion which  offences  shall  be  adjudged  treason,"  consti- 
tutes the  statute.'  This  law  of  Edward  III.  was  altered 
and  enlarged  in  later  reigns.  And  an  amendment  to  it, 
referring  to  witnesses,  which  has  been  incorporated  in 
the  American  Constitution,  dates  from  1552  in  the  time 
of  Edward  VI.,  when,  in  consequence  of  complaint  from 
persons  under  trial,  that  they  were  unable  to  defend 
themselves,  because  not  allowed  to  meet  their  accusers, 
it  was  enacted  that  no  one  should  be  indicted  for  treason 
in  future,  save  on  the  testimony  of  two  witnesses  who 
should  be  brought  into  the  presence  of  the  accused  at 
the  time  of  his  trial,  unless  he  should  willingly  confess 
the  charges.-  The  Constitution  reads  :  "Treason  against 
the  United  States  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort.     No  person  shall  be  convicted  of  treason 

1  25  Edw.,  St.  5,  c.  2.  The  petition  prayed  that  "  whereas  the 
king's  justices  in  different  counties  adjudge  persons  indicted  before 
them  to  be  traitors  for  sundry  matters  not  known  by  the  commons 
to  be  treason,  it  would  please  the  king  by  his  council,  and  by  the 
great  and  wise  men  of  the  land,  to  declare  what  are  treasons,  in  this 
present  Parliament."  In  later  reigns  the  law  of  treason  was  often 
extended  to  offences  not  mentioned  in  this  statute  of  Edward  III., 
but  to  reduce  the  crime  to  the  limits  of  the  ancient  statute  was 
always  a  popular  measure.  With  some  modifications,  this  is  the 
law  at  the  present  time. 

-  5  and  6  Edw.  VI.  c.  11. 


204  SOURCES   OF   THE    CONSTITUTION.        chap. 

unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court."  * 

Article  IV.,  which  takes  up  the  general  subject  of  States 
and  territories,  in  their  relation  to  each  other  and  to  the 
Federal  government,  touches  a  variety  of  matters  con- 
fessedly of  English  derivation  ;  and  even  the  State  system 
itself,  which  usually  has  been  considered  an  American 
peculiarity,  must  be  conceded  to  be  only  a  natural  and 
necessary  outgrowth  of  the  old  political  separation  of 
colony  from  colony,  and  of  union  under  the  crown. 
Colony  and  State  have  remained  the  same  in  substance, 
whether  the  higher  administration  has  been  centred  in 
London  or  in  Washington.  And  the  identical  principle 
is  still  in  operation  in  the  clusters  of  colonies  of  Canada, 
South  Africa,  and  Australia,  and  has  its  analogies  in  the 
general  structure  of  the  British  empire. 

The  concluding  articles  —  the  fifth,  treating  of  amend- 
ments ;  the  sixth,  detailing  sundry  matters  of  routine 
relating  to  the  establishment  of  the  Constitution  itself; 
and  the  seventh,  providing  for  the  ratification  of  that 
instrument  —  need  not  be  dwelt  upon,  save  as  to  points 

^  Constitution  of  the  United  States,  Art.  III.  Sec.  3.  "The  in- 
terpretation of  the  phrases,  '  levying  war  '  and  '  adhering  to  their 
enemies,'  is  a  matter  wholly  for  the  court.  The  court  is,  then, 
empowered  to  defend  the  individual  against  prosecutions  for  any 
extraordinary  treasons  which  Congress  might  attempt  to  construct." 
Burgess,  Political  Science  and  Constitutional  Lazo,  II.  148.  See 
also  Hanaiier  v.  Doane,  United  .States  Reports,  12  Wallace,  342; 
Ex  parte  Bollmaii  v.  Sivartwoiit,  United  States  Reports,  4  Cranch, 
75;  Carlisle  v.  United  States,  United  States  Reports,  16  Wallace, 
147. 


VII.  THE   JUDICIARY.  205 

which  will  come  up  in  connection  with  kindred  topics  in 
the  next  chapter.* 

^  Reference  has  already  been  made  in  this  book  to  Douglas 
Campbell's  Puritan  in  Holland,  England,  and  America.  The 
fact  admitted  by  Mr.  Campbell,  that  historians  take  a  position 
entirely  at  variance  with  his,  seems  not  to  have  deterred  him  from 
setting  up  a  claim  for  Dutch  influence  in  America;  which  claim,  in 
most  of  its  particulars,  must  continue  to  lack  the  support  of  histo- 
rians. A  conspicuous  feature,  giving  the  key  to  the  whole  of  his 
work,  is  an  argument  in  the  introduction,  intended  to  demonstrate 
that  American  governmental  institutions  are  not  of  English  deriva- 
tion. He  says:  "Instead  of  those  of  the  United  States  being 
derived  from  England,  it  is  a  curious  fact,  that  while  we  have  in  the 
main  English  social  customs  and  traits  of  character,  we  have  scarcely 
a  legal  or  political  institution  of  importance  which  is  of  English 
origin,  and  but  few  which  have  come  to  us  by  the  way  of  England." 
—  I.  II.  In  proof  of  this  astonishing  assertion  he  proceeds,  after 
referring  to  certain  religious  and  social  matters,  to  illustrate  by  speci- 
fying characteristics  of  the  American  Constitution.  Let  us  briefly 
look  at  these  characteristics. 

(i)  Mr.  Campbell  intimates,  that  as  the  English  Constitution  is 
unwritten,  Americans  could  not  have  got  a  written  constitution 
from  England;  and  seems  to  imply  that  they  therefore  got  it  from 
the  Dutch,  who  had  a  written  compact  in  the  Union  of  Utrecht,  of 
which  he  says  much.  Of  course,  nowhere  in  his  work  does  he  show 
American  continuity  from  this  imagined  Dutch  original.  And  he 
wholly  ignores  the  real  origin  of  written  constitutions  in  America; 
viz.  the  English  charters  granted  by  English  sovereigns  to  English 
subjects.  These  latter,  with  the  English  political  usage  growing  up 
under  them,  formed,  as  we  have  seen,  the  constitutions  of  colonial 
days.  All  the  States  save  Connecticut  and  Rhode  Island,  framed 
the  first  State  constitutions  accordingly,  —  those  two  States  retaining 
the  old  charters,  even  into  the  nineteenth  century.  The  national 
Constitution,  as  a  written  document,  is  based  on  the  written  consti- 
tutions of  the  States,  as  these  in  turn  were  based  on  the  written 
English  charters.  And  the  latter  had  their  source  in  English  trade 
charters,  and  not  in  any  Dutch  original  whatsoever. 


206        SOURCES   OF  THE    CONSTITUTION,      chap.  vii. 

(2)  He  intimates  that  the  American  executive  office  is  not  of 
English  derivation,  because  the  President  is  a  personal  executive, 
and  the  English  sovereign  of  to-day  is  controlled  by  a  cabinet.  In 
this  he  strangely  confuses  historical  facts,  and  leaves  altogether  out 
of  view  the  real  evolution,  through  the  colonial  governorship  and 
otherwise,  from  the  older  English  kingship  before  the  establish- 
ment of  the  Cabinet  system. 

(3)  He  intimates  that  the  American  Congress  is  not  of  English 
derivation,  because  the  House  of  Lords  of  to-day  has  powers  differ- 
ing in  some  degree  from  those  of  the  Senate,  and  the  latter  body 
is,  in  part,  an  executive  or  privy  council;  and  because  further  a 
member  of  the  House  of  Representatives  is  paid,  and  has  a  term  of 
membership  differing  as  to  duration  from  that  of  a  member  of  the 
House  of  Commons.  Surely  no  serious  answer  need  be  accorded 
to  arguments  so  trivial,  in  view  of  the  fact  of  legislative  evolution  in 
organization,  privileges,  and  power,  traced  in  the  foregoing  Chap- 
ters HI.  and  IV. 

(4)  Mr.  Campbell  says  that  "  above  all  in  America  .  .  .  sits  the 
Supreme  Court  to  see  that  the  Constitution  ...  is  preserved  intact. 
Its  judges  are  appointed  by  the  President  and  confirmed  by  the 
Senate,  but  they  hold  office  for  life  or  good  behaviour."  The  fore- 
going chapter  shows  how  far  this  can  be  claimed  as  proof  that 
the  American  judicial  system  is  not  of  English  and  Anglo-colonial 
evolution.  He  adds :  "  These  features  make  up  the  peculiarities  of 
the  American  Federal  system,  and  differentiate  it  from  other  forms 
of  government.  All  nations  have  an  executive  of  some  kind,  most 
of  them  have  judges  and  legislative  bodies,  so  that  in  these  general 
outlines  there  is  nothing  on  which  to  base  a  theory  of  English 
origin.  The  question  is  whether  our  peculiar  institutions,  those 
distinctive  of  America,  are  derived  from  the  '  mother-country.' " 
That  is,  of  course,  the  sole  question.  And  the  aim  of  the  present 
book  —  written  before  Mr.  Campbell's  appeared  —  has  been  to 
definitely  settle  the  question  in  the  affirmative,  by  the  appeal  to 
history. 


CHAPTER  VIII. 


THE    BILL   OF   RIGHTS. 


THE  English  common  law,  which  lies  at  the  basis  of 
English  and  American  liberties,  is  the  growth  of 
centuries,  and  its  maxims  breathe  the  very  spirit  of  the 
race.  It  is  that  "law  of  the  land,"  to  which  the  Magna 
Charta  of  King  John  referred  for  the  guarantee  of  personal 
rights ;  and  its  essential  principles  are  interwoven  with 
the  Petition  of  Rights  of  Charles  I.,  and  the  Bill  of  Rights 
and  Act  of  Settlement  of  the  Revolution  of  1688.  So  far 
as  applicable  to  American  conditions,  "  it  was  brought 
over  by  our  ancestors,"  says  Chancellor  Kent,  "  upon 
their  first  emigration  to  this  country."'     And  the  royal 

^  "  The  common  law  of  England,  so  far  as  it  was  applicable  to 
our  circumstances,  was  brought  over  by  our  ancestors  upon  their 
emigration  to  this  country.  The  Revolution  did  not  involve  in  it 
any  abolition  of  the  common  law.  It  was  rather  calculated  to 
strengthen  and  in^^gorate  all  the  first  principles  of  that  law,  suitable 
to  our  state  of  society  and  jurisprudence.  It  has  been  adopted,  or 
declared  in  force,  by  the  constitutions  of  some  of  the  States,  and  by 
statute  in  others.  And  where  it  has  not  been  so  explicitly  adopted, 
it  is  nevertheless  to  be  considered  as  the  law  of  the  land,  subject 
to  the  modifications  which  have  been  suggested,  and  to  express 
legislative  repeal." — Kent,   Conirnen/at-ies  on  American  Law,  II. 

28. 

207 


208  SOURCES   OF   THE   CONSTITUTION.        chap. 

charters  included  it  in  their  provision,  that  Enghshmen 
in  the  colonies  should  be  entitled  to  the  same  privileges 
as  Englishmen  at  home.' 

Formal  declarations  of  rights,  drawn  from  the  common 
law,  were  incorporated  in  the  earliest  colonial  legislation. 
Plymouth  Colony,  in  the  first  of  these,  enumerated,  among 
other  privileges,  that  justice  should  be  impartially  and 
promptly  administered,  with  trial  by  jury,  and  that  no 
person  should  suffer  in  Hfe,  limb,  liberty,  good  name,  or 
estate,  but  by  due  process  of  law.^  Connecticut,  in  1639, 
adopted  an  act  closely  similar.  New  York  enacted,  in 
1 69 1,  that  no  freeman  should  be  deprived  of  any  rights, 
or  liberties,  or  condemned,  save  by  the  judgment  of  his 
peers,  or  the  law  of  the  land  ;  that  no  tax  should  be  levied 
except  by  act  of  the  legislature  in  which  the  colonists 

1  Kent  summarizes  the  facts  thus :  "  It  was  a  provision  in  the 
charters  of  the  Virginia  settlers  granted  by  James  I.  in  1606  and 
1609,  and  in  the  charter  to  the  colonists  of  Massachusetts  in  1629; 
of  the  Province  of  Maine  in  1639;  of  Connecticut  in  1662;  of 
Rhode  Island  in  1663;  of  Maryland  in  1632;  of  Carolina  in  1663; 
and  of  Georgia  in  1732;  that  they  and  their  posterity  should  enjoy 
the  same  rights  and  liberties  which  Englishmen  were  entitled  to  at 
home.  Such  privileges  were  implied  by  the  law,  without  any 
express  reservation.  The  like  civil  and  religious  privileges  were 
conceded  to  New  Jersey  by  the  proprietaries  in  February,  1665." 
—  Comtnentaries  on  American  Law.,  12th  ed.  II.  2,  n. 

-  "They  insisted  that  they  brought  with  them  into  this  country 
the  privileges  of  English  freemen,  and  they  defined  and  declared 
those  privileges  with  a  caution,  sagacity,  and  precision  that  have  not 
been  surpassed  by  their  descendants.  Those  rights  were  after- 
wards, in  the  year  1692,  on  the  receipt  of  their  new  charter,  reas- 
serted and  declared."  —  Ibid.  II.  2. 


VIII.  THE   BILL    OF  KLGLITS.  209 

were  represented  ;  that  trial  by  jury  should  be  maintained, 
and  that  in  all  criminal  cases  there  should  be  previous 
indictment  by  a  grand  inquest.  Though  the  king  re- 
pealed this  act,  another,  of  like  import,  was  adopted  in 
1708.^  Massachusetts,  in  1641,  promulgated  a  Body  of 
Liberties,  the  first  paragraph  of  which  reads  :  "  No  man's 
life  shall  be  taken,  no  man's  honour  or  good  name  shall 
be  stained,  no  man's  person  shall  be  arrested,  restrained, 
banished,  dismembered,  nor  anyways  punished,  no  man 
shall  be  deprived  of  his  wife  or  children,  no  man's  goods 
or  estate  shall  be  taken  away  or  anyway  endangered  under 
colour  of  law  or  countenance  of  authority,  unless  it  be 
by  virtue  or  equity  of  some  express  law  of  the  country 
warranting  the  same,  established  by  the  General  Court 
and  sufficiently  published,  or  in  case  of  the  defect  of  the 
law  in  any  particular  case,  by  the  Word  of  God,  and  in 
capital  cases,  or  in  cases  concerning  dismembering  or 
banishment,  according  to  that  word  to  be  judged  by  the 
General  Court."  In  like  manner,  declaration  of  rights 
was  made  by  the  legislature  of  Virginia  in  1624  and  1676  ; 
by  the  legislature  of  Pennsylvania  in  1682  ;  of  Maryland 
in  1639  and  1650;  and  of  Rhode  Island  in  1663;  and 
also  by  the  proprietaries  of  Carolina  in  1667,  and  of  New 
Jersey  in  1664,  1683,  and  at  other  dates.  In  1638  the 
first  assembly  of  Maryland  declared  Magna  Charta  to 
be  the  measure  of  their  liberties. 

The  whole  subject  of  privileges  was  forced  into  special 
prominence  by  the  outbreak  of  the  constitutional  struggle 

1  Laws  of  New  York,  1708. 


210  SOURCES   OF  THE    CONSTITUTION.         chap. 

between  the  colonies  and  England.  And  so  it  was  that 
the  congress  of  delegates  from  nine  colonies,  which  met 
in  New  York  in  1765,  issued  a  general  declaration  of 
rights ;  and  that  a  further  and  more  formal  pronounce- 
ment of  the  same  character  was  put  forth  by  the  first 
Continental  Congress  in  1774.  The  latter  became  the 
basis  of  the  bills  of  rights  which  eventually  were  incor- 
porated into  the  constitutions  of  the  new  States.  It 
declared  "  that  the  inhabitants  of  the  English  colonies  in 
North  America,  by  the  immutable  laws  of  nature,  the 
principles  of  the  English  Constitution,  and  their  several 
charters  or  compacts,  were  entitled  to  life,  liberty,  and 
property ;  and  that  they  had  never  ceded  to  any  sover- 
eign power  whatever  a  right  to  dispose  of  either,  without 
their  consent ;  that  their  ancestors,  who  first  settled  the 
colonies,  were,  at  the  time  of  their  emigration  from  the 
mother-country,  entitled  to  all  the  rights,  liberties,  and 
immunities  of  free  and  natural  born  subjects  ;  and  by 
such  emigration  they  by  no  means  forfeited,  surrendered, 
or  lost  any  of  those  rights ;  that  the  foundation  of  Eng- 
lish liberty,  and  of  all  free  government,  was  the  right  of 
the  people  to  participate  in  the  legislative  power,  and 
they  were  entitled  to  a  free  and  exclusive  power  of  legis- 
lation in  all  matters  of  taxation  and  internal  policy,  in 
their  several  provincial  legislatures,  where  their  right  of 
representation  could  alone  be  preserved  ;  that  the  respec- 
tive colonies  were  entitled  to  the  common  law  of  England, 
and  more  especially  to  the  great  and  inestimable  privilege 
of  being  tried  by  their  peers  of  the  vicinity,  according  to 


viii.  THE   BILL    OF  RIGHTS.  211 

the  course  of  that  law  ;  that  they  were  entitled  to  the 
benefit  of  such  English  statutes  as  existed  at  the  time 
of  their  colonization,  and  which  they  had  by  experience 
found  to  be  applicable  to  their  several  local  and  other 
circumstances  ;  that  they  were  likewise  entitled  to  all  the 
immunities  and  privileges  granted  and  confirmed  to  them 
by  royal  charters,  or  secured  by  their  several  codes  of 
provincial  laws."  ^ 

It  was  widely  anticipated  by  the  public  that  the  na- 
tional Constitution  drafted  at  Philadelphia  would  contain 
a  full  enumeration  of  such  ancient  rights.  The  members 
of  the  Convention  seem  not  to  have  appreciated  the  force 
of  this  popular  feeling ;  considering  that  as  the  people 
themselves  now  possessed  the  power  of  making  their 
own  laws  and  of  selecting  those  who  should  execute  them, 
specific  announcement  of  privileges  which  had  grown  out 
of  old  controversies  with  the  crown  was  unnecessary. 
Sufficient  provision  was  made  in  the  body  of  the  Consti- 
tution for  taxation  by  the  legislature  only,  for  judgment 
in  cases  of  impeachment,  for  the  privilege  of  the  writ  of 
habeas  corpus,  for  trial  by  jury  in  criminal  cases,  for  the 
definition,  trial,  and  punishment  of  treason  with  limita- 
tion of  historical  abuses  in  such  connection,  for  the  pro- 
hibiting of  bills  of  attainder,  ex-post  facto  laws,  and  laws 
impairing  the  obligation  of  contracts  or  imposing  relig- 
ious tests.'     All  these  were  so  many  declarations  of  rights 

1  yournah  of  Congress,  I.  ed.,  Phila.  1800. 

-  Regarding  attainder  and  ex-post  facto  laws,  Mr.  Justice  Miller 
remarks  :   "  The  prohibition  against  passing  bills  of  attainder  is  one 


212  SOUHCES   OF   THE    CONSTITUTION.        chap. 

for  the  protection  of  the  citizens,  not  exceeded  in  value 
by  any  which  could  possibly  find  a  place  in  any  bill  of 

which  was  intended  to  guard  against  a  danger  which  has  passed 
out  of  the  memory  of  the  present  generation.  Up  to  the  time  of 
the  formation  of  this  Constitution,  the  Parliament  of  England  had 
been  in  the  habit,  by  legislative  enactments,  of  declaring  individuals 
attainted  for  treason,  for  murder,  for  conspiracies,  and  further 
crimes,  especially  crimes  against  the  government.  This  declaration 
of  attainder  by  the  legislative  body  was  accompanied,  either  im- 
pliedly, or  by  the  express  terms  of  the  bill,  with  a  deprivation  of  all 
rights  of  property  and  of  all  capacity  to  transmit  property  by  de- 
scent, or  acquire  it  in  that  manner,  in  addition  to  punishments 
such  as  death  and  other  cruelties.  This  kind  of  proceeding  was 
had,  not  in  a  court  of  justice,  .  .  .  but  the  legislature,  the  Parlia- 
ment, either  with  or  without  inquiry,  or  with  such  insufficient  in- 
quiry as  they  chose  to  make,  generally  in  the  absence  of  the  victim, 
proceeded  at  once  to  make  charges,  decide  upon  the  guilt  of  the 
party,  and  announce  the  punishment,  thus  acting  in  all  instances 
as  the  sovereign,  the  legislative,  and  judicial  power  at  the  same  time. 
It  was  at  one  time  suggested  that  ex-post  facto  laws,  "  equally 
forbidden  to  the  general  government  and  to  the  States,  might  be 
held  to  be  any  law  which  affected  the  rights  of  a  person  civilly  or 
criminally  after  those  rights  had  been  acquired  or  established  in 
accordance  with  existing  laws.  This,  however,  is  a  mistake,  and 
the  phrase  '  ex-post  facto  laws  '  has  application  alone  to  laws  which 
relate  to  crimes  and  criminal  proceedings,  because  it  was  used  in 
that  limited  sense  by  our  English  ancestors  long  previous  to  the 
formation  of  the  Constitution.  The  contemporary  accounts  of  its 
adoption  show  that  such  was  the  sense  in  which  the  Convention 
understood  it."  —  lectures  on  the  Constitution  of  the  United  States, 
5S4-586.  The  Supreme  Court  of  the  United  States  has  decided  for 
this  interpretation,  in  cases  which  have  come  before  it,  affirming 
the  English  origin,  as  it  constantly  does  in  its  decisions  on  con- 
stitutional and  legal  questions.  See  Calder  v.  Bull,  3  Dall.  386; 
Watson  V.  Mercer,  8  Pet.  88,  no;  Satterlee  v.  Matthewson,  2  Pet. 
380;   Kringw.  Missouri,  107  U.  S.  221. 


VIII.  THE  BILL    OF  RIGHTS.  213 

rights.^  But  as  soon  as  the  draft  of  the  Constitution  left 
the  Convention,  the  lack  of  a  formal  bill  was  severely 
and  persistently  criticised  by  the  people.  And  the 
promise  that  one  should  be  added,  as  soon  as  the  new 
government  actually  got  under  way,  was  found  necessary 
in  order  to  induce  some  of  the  principal  States  to  ratify 
the  instrument.  The  first  ten  amendments,  therefore,^ 
were  adopted  as  speedily  as  possible  by  the  first  Con- 
gress and  the  nation ;  and  to  all  intents  they  are  to 
be  regarded  as  a  part  of  the  Constitution  in  its  original 
unity,  as  a  product  of  the  formative  period.'  Their 
position  in  this  respect  is  essentially  different  from  that 
of  the  amendments  which  are  the  outcome  of  subse- 
quent national  experience. 

Thus  there  is  not  only  a  bill  of  rights  in  the  Constitu- 
tion of  the  United  States,  but  that  bill  of  rights  was 
consciously  demanded  by  the  American  people  them- 
selves against  the  judgment  of  their  own  Constitutional 

^  See  Federalist,  No.  84. 

-  "  With  a  view  of  carrying  into  effect  popular  will,  and  also  of  dis- 
arming the  opponents  of  the  Constitution  of  all  reasonable  grounds 
of  complaint,  Congress,  at  its  very  first  session,  took  into  consider- 
ation the  amendments  so  proposed;  and  by  a  succession  of  supple- 
mentary articles  provided,  in  substance,  a  bill  of  rights,  and  secured 
by  constitutional  declarations  most  of  the  other  important  objects 
thus  discussed  "  in  the  conventions  of  the  States  that  adopted  the 
Constitution.  "These  articles  (in  all  twelve)  were  submitted  by 
Congress  to  the  States  for  their  ratification,  and  ten  of  them  were 
finally  ratified  by  the  requisite  number  of  States,  and  thus  became 
incorporated  into  the  Constitution."  —  Story,  Commentaries  on  the 
Constitution  of  the  United  States,  I.  21 1,  §  yi},. 


214  SOUJ^CES   OF   THE   CONSTITUTION.        chap. 

Convention,  and  for  the  express  reason  that  they  re- 
garded the  liberties  inckuled  therein  as  their  hberties, 
because  based  upon  old  English  law. 

Let  us  take  up  consecutively  these  ten  amendments. 
The  first  reads  :  "  Congress  shall  make  no  law  respecting 
an  establishment  of  religion,  or  prohibiting  the  free 
exercise  thereof;  or  abridging  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  government 
for  a  redress  of  grievances."^ 

The  first  clause  of  the  amendment  treats  of  the 
right  of  religious  liberty,  —  a  right  the  daughter-land 
was  before  the  mother-country  in  establishing.  The 
English  Toleration  Act  of  1688-  granted  privileges  to 
dissenters,  which  their  active  share  in  seating  William 
of  Orange  on  the  throne  was  thought  to  have  earned ; 
and  though  flir  from  according  religious  freedom,  it 
laid  foundation  for  the  future.  Reactionary  statutes 
passed  in  the  latter  part  of  the  reign  of  Queen  Anne 
were  repealed  in  the  early  years  of  the  House  of  Han- 
over;^ and  from  the  accession  of  George  II.  dissenters 
were  admitted  to  civil  offices.''     The  laws  against  Roman 

1  In  Charles  Pinclcney's  "  Plan "  of  a  federal  constitution,  sub- 
mitted to  the  Philadelphia  Convention,  was  the  following:  "The 
legislature  of  the  United  States  shall  pass  no  law  on  the  subject  of 
religion,  nor  touching  or  abridging  the  liberty  of  the  press."  The 
amendment  embraces  recommendations  of  the  conventions  of  New 
Hampshire,  Virginia,  and  North  Carolina. 

2  I  Will,  and  Mary,  c.  18. 
8  5  Geo.  I.  c.  4. 

*  This  was  done  by  means  of  the  Annual  Indemnity  Acts  passed 
in  favour  of  those  who  had  not  qualilied  themselves  under  the  Cor- 


VIII.  THE   BILL    OF  RIGHTS.  215 

Catholics,  also,  were  gradually  softened  in  operation.' 
Early  in  the  reign  of  George  III.  modern  principles 
of  toleration  were  enunciated  in  a  judicial  decision 
of  the  Lords,-  on  which  occasion  Lord  Mansfield  de- 
clared, in  moving  the  judgment  of  the  House:  ''There 
is  nothing  certainly  more  unreasonable,  more  inconsistent 
with  the  rights  of  human  nature,  more  contrary  to  the 
spirit  and  precepts  of  the  Christian  religion,  more  iniqui- 
tous and  unjust,  more  impolitic,  than  persecution.  It 
is  against  natural  religion,  revealed  religion,  and  sound 
policy."^  Regulations  relating  to  dissent  became  more 
and  more  relaxed.  And  on  the  verge  of  the  adoption 
of  the  American  Constitution,  measures  for  the  relief 
of  both  Roman  Catholics  and  Protestants  were  passed ; 
and  these  were  followed  by  a  series  of  acts  which 
eventually  removed  all  civil  disabilities. 

Of  the  condition  of  things  in  the  colonies,  Green 
thus  speaks  :  "  Europe  saw,  for  the  first  time,  a  state 
growing  up  amid  the  forests  of  the  west,  where  relig- 
ious  freedom   had  become    complete.       Religious   tol- 

poration  and  Test  Acts.  The  first  Indemnity  Act  was  passed  in 
1727.  With  few  exceptions,  similar  acts  were  passed  every  year 
thereafter,  until  the  Test  and  Corporation  Acts  were  repealed 
in  1828. 

1  I  Geo.  I.  c.  55,  and  26  Geo.  II.  c.  ^2,. 

'  Chamberlain  of  London  v.  Allen  Evans,  Esq. 

^  Cobbett,  Parliamentary  History,  XVI.  313-327.  Among  the 
strong  sayings  of  Lord  Manstield  in  this  connection  was  the  remark  : 
"  Persecution  for  a  sincere,  though  erroneous,  conscience,  is  not  to 
be  deduced  from  reason  or  the  fitness  of  things. " 


216  SOURCES   OF   THE    CONSTITUTIOA^        chap. 

eration  had,  in  fact,  been  brought  about  by  a  medley 
of  religious  faiths  such  as  the  world  had  never  seen 
before.  New  England  was  still  a  Puritan  stronghold. 
In  the  southern  colonies  the  Episcopal  Church  was 
established  by  law,  and  the  bulk  of  the  settlers  clung 
to  it ;  but  Roman  Catholics  formed  a  large  part  of  the 
population  of  Maryland.  Pennsylvania  was  a  State  of 
Quakers.  Presbyterians  and  Baptists  had  fled  from 
tests  and  persecutions  to  colonize  New  Jersey.  Luther- 
ans and  Moravians  from  Germany  abounded  among 
the  settlers  of  Carolina  and  Georgia.  In  such  a  chaos 
of  creeds,  religious  persecution  became  impossible."  ^ 

The  boast  was  wont  to  be  made,  that  the  Puritans 
of  New  England  led  the  way  in  establishing  by  law 
religious  toleration.  A  similar  claim  is  still  put  forth  on 
behalf  of  the  Baptists  of  Rhode  Island.  Truth  must 
award  the  honour  to  Maryland,  where  action  proceeded 
from  a  combination  of  Roman  Catholic  and  non-Roman 
Catholic   conditions.^     This   action   of    Maryland   took 

^  History  of  the  English  People,  V.  216. 

2  Douglas  Campbell  (^Pti)-iian  in  Holland^  England,  and 
America)  claims  that  religious  liberty  in  America  was  of  Dutch 
origin;  apparently  on  the  ground  that  it  existed  in  the  Netherlands 
at  an  early  date.  But  he  does  not  include  Maryland  in  the  sphere 
of  Dutch  influence.  And,  in  fact,  the  action  in  Maryland  seems 
to  have  had  quite  a  different  origin.  Possibly  Dutch  example  may 
have  had  indirect  influence  elsewhere.  Roger  Williams,  in  estab- 
lishing religious  toleration  in  Rhode  Island,  was  influenced  not 
improbably  by  the  Dutch  Anabaptists. 

"  Religious  tolerance  which  prevailed  in  colonial  Maryland,  so 
much  vaunted,  and  so  often  contrasted  with  the  narrow  intolerance 


VIII.  THE  BILL    OF  RIGHTS.  217 

place  in  1649.  ^'^'^  ^^at  of  Rhode  Island  in  1663.  In 
the  next  year  the  proprietaries  granted  to  the  colonists 
of  New  Jersey  the  widest  toleration.  Enactments 
known  as  the  Duke's  Laws,  issued  in  1665  t)y  an 
assembly  which  met  on  Long  Island  at  the  call  of 
Governor  Nichol,  declared  that  no  person  professing 
a  belief  in  Christianity  should  be  molested  for  his 
judgment  in  matters  of  religion.^  The  same  principles 
were  again  promulgated  in  1665,  in  the  charter  of 
liberties  established  by  the  assembly,  acting  under  the 
Duke  of  York.-      Charles  II.,    in  his   charter  of  1667, 

common  in  New  England,  was  evidently  dictated  by  worldly  pru- 
dence, rather  than  prompted  by  an  advanced  charity.  It  must  be 
remembered  that  at  that  time,  the  feeling  in  England  was  bitterly 
hostile  to  the  Papists,  and  that  the  grant  of  lands  to  Lord  Baltimore 
was  from  a  Protestant  monarch,  and  of  a  portion  of  the  territory 
claimed  by  Virginia,  a  Protestant  colony.  Considerations  of  pru- 
dence also  forbade  exciting  the  animosity  of  the  Puritan  colonies  of 
New  England.  Obviously,  therefore.  Lord  Baltimore,  whatever 
might  have  been  his  disposition,  could  not,  with  safety,  have  founded 
his  new  settlement  upon  a  basis  of  intolerance." — Crane  and 
Moses,  Politics,  119.  However  this  may  be,  the  claim  of  a  Dutch 
origin  for  religious  toleration  in  America  is  unhistorical.  The 
honour  belongs  to  Maryland. 

1  Thompson,  History  of  Long  Island,  I.  132,  ed.  1843. 

^  Douglas  Campbell  observes :  "  Of  all  the  thirteen  [original 
States],  two  and  two  only  —  Virginia  and  New  York  —  embodied 
in  their  [new  State  constitutions]  guarantees  of  religious  liberty.  .  .  . 
The  other  States  retained  religious  tests  for  their  officials,  or  in  some 
form  made  religious  discriminations.  Virginia,  in  1776,  issued  a 
Declaration  of  Rights,  which,  it  is  claimed,  formed  part  of  her 
constitution,  laying  down  the  principle  "'  of  religious  liberty.  "  Still 
the  State  retained  its  established  Church  until  17S5,  and  in  various 


218  SOURCES    OF   THE    CONSTITUTION.        chak 

axithorized  the  proprietaries  of  Carolina  to  accord  relig- 
ious liberty  to  non-conformists  who  did  not  by  their 
non-conformity  disturb  the  civil  peace  of  the  province. 
Massachusetts,  in  1691,  passed  an  act  benefiting  all  but 
Roman  Catholics ;  and  the  Quaker,  William  Penn,  gave 
his  colony,  ten  years  later,  a  law  guaranteeing  freedom 
of  conscience.  Toleration  similar  to  that  of  Massa- 
chusetts was  provided  in  the  charter  granted  by  George 
II.  to  Georgia  in  1732. 

Thus  when  the  Constitution  of  the  United  States  was 
formulated,  the  principle  of  religious  freedom  had  been 
for  some  time  gathering  strength.  Partly  from  this 
cause,  and  probably  yet  more  from  the  fact  that  no  one 
Christian  body  was  in  sufficient  numerical  predominance 
to  make  an  ecclesiastical  establishment  of  it  for  the 
nation  a  political  possibility,  it  was  enacted  ;  "  Congress 
shall  make  no  law  respecting  an  establishment  of  religion, 

other  ways  fell  short  of  practising  full  religious  liberty.  New  York, 
however,  in  its  first  constitutions  adopted  in  1777,  proceeded  at  the 
outset  to  do  away  with  the  established  Church.  .  .  .  Then  followed 
a  section  much  broader  and  more  explicit  than  that  of  the  Virginia 
Declaration  of  Rights."  —  Puritan  in  Holland,  England,  and 
America,  I.  250.  This  author  claims  that  the  New  York  constitu- 
tional enactment  is  the  basis  of  American  religious  liberty,  and 
because  it  was  an  enactment  of  New  York,  gratuitously  assumes  it 
to  be  of  Dutch  origin,  —  though  in  truth  it  was  but  a  logical  out- 
come of  the  laws  of  the  Duke  of  York,  1665,  adopted  under  Eng- 
lish influence.  So  far  as  the  American  Constitution  is  concerned, 
the  first  amendment  seems  to  have  originated  in  the  draft  of  Mr. 
Charles  Pinckney  of  South  Carolina,  proposed  in  the  Philadelphia 
Convention.  See  Elliot,  Debates,  V.  131.  See  also  action  of  New 
Hampshire  convention. 


VIII.  THE   BILL    OF  RIGHTS.  219 

or  prohibiting  the  free  exercise  thereof."  ^  In  Article  VI. 
of  the  Constitution  it  had  been  laid  down  already  :  "  No 
religious  test  shall  ever  be  required  as  a  qualification 
to  any  office  or  public  trust  under  the  United  States," 
a  reference  to  the  English  Test  Act  of  1673.- 

The  next  provision  in  Article  I.  of  the  amendments 
relates  to  freedom  of  public  utterance  and  the  press. 
The  invention  of  printing  in  the  fifteenth  century  brought 
with  it  a  censorship,  which  was  in  the  hands  of  the  ecclesi- 
astical power  throughout  Europe.  After  the  Reformation, 
this  censorship  devolved,  in  England,  upon  the  crown  ; 
and  a  licenser  was  regularly  appointed  whose  imprima- 
tur was  required  for  the  lawful  publication  of  any  writing. 
Printing  was  regulated  further  by  royal  proclamations 
and  grants  of  privilege.'^  The  unlicensed  issue  of  anything 
deemed  seditious  or  slanderous  was  punished  by  mutila- 
tion and  death.'*     And  in   the  reigns  of  the    first   two 

^  Constitution  of  the  United  States,  Amendment  I. 

2  25  Car.  II.  c.  2.  The  famous  Test  Act  was  passed  "  for  pre- 
venting dangers  which  may  happen  from  Popish  recusants."  It 
worked  much  injustice. 

^  "  All  printing  was  interdicted  elsewhere  tlian  in  London,  Ox- 
ford, and  Cambridge;  and  nothing  whatever  was  allowed  to  be 
published  until  it  had  first  been  'seen,  perused,  and  allowed'  by 
the  Archbishop  of  Canterbury,  or  the  Bishop  of  London,  except 
only  publications  by  the  queen's  printer,  to  be  appointed  for  some 
special  service,  or  by  the  law  printers,  for  whom  the  license  of  the 
Chief  Justices  was  sufficient."  — Taswell-Langmead,  English  Consti- 
tutional History,  766. 

*  St.  23  Eliz.  c.  2.  See  cases  of  Stubbe,  1579;  Udal,  1591; 
Barrow  and  Greenwood,  1593;    Penry,  1593. 


220  SOUJiCES   OF   THE    CONSTITUTION.        chap. 

Stuarts,  political  and  religious  discussion  was  vigorously 
repressed  by  the  Star  Chamber.  The  Long  Parliament 
used  the  weapon  of  censorship  on  the  lines  laid  down 
by  that  obnoxious  court,  with  such  severity  as  to  call 
forth  from  John  Milton  the  Areopagitica,  denouncing 
the  suppression  of  truth  by  a  licenser,  and  appealing 
for  "  the  liberty  to  know,  to  utter,  and  to  argue  freely 
according  to  conscience,  above  all  liberties."  '  After  the 
Restoration,  the  Licensing  Act,  based  upon  the  former 
parliamentary  ordinances,  was  established  for  a  period  of 
three  years,  placing  the  regulation  of  printing  in  the  con- 
trol of  the  government  of  Charles  IL-  The  act  was 
continued   by  repeated  renewals  until   1679;^  ^'^d  w-as 

1  Milton,  Areopagitica,  73,  74,  Arber's  Reprints.  In  the  British 
Museum  are  over  30,000  political  newspapers  and  pamphlets  that 
were  printed  in  the  twenty  years  between  1640  and  the  Restoration 
of  Charles  II.  Douglas  Campbell  notes  that  Milton  in  no  way 
refers  to  Holland  or  to  Dutch  ideas  in  advocating  liberty  of  the 
press.     Puritan  in  Holland,  England,  and  America,  II.  344,  n.  2. 

"  13  and  14  Car.  II.  c.  33. 

*  "  After  the  Licensing  Act  had  been  temporarily  suffered  to 
expire  in  1679,  the  twelve  judges,  with  Chief- Justice  Scroggs  at 
their  head,  declared  it  to  be  criminal  at  common  law  to  publish 
anything  concerning  the  government,  whether  true  or  false,  of 
praise  or  censure,  without  the  royal  license.  All  newspapers  were 
in  consequence  stopped;  and  the  people  were  reduced,  for  political 
intelligence  and  instruction,  to  two  government  publications.  .  .  . 
In  the  absence  of  newspapers,  the  coffee-houses  became  the  chief 
organs  through  which  the  public  opinion  of  the  metropolis  vented 
itself,  while  the  inhabitants  of  provincial  towns,  and  the  great  body 
of  the  gentry  and  country  clergy,  depended  almost  exclusively  on 
news-letters  from  London  for  their  knowledge  of  poHtical  events." 
—  Taswell-Langmead,  English  Constitutional  History.,  yGS. 


viii.  THE  BILL    OF  RIGHTS.  11\ 

reaffirmed  in  16S5  by  James  II.  for  a  term  of  seven 
years,  and  again,  in  1692,  by  William  and  Mary.  Efforts 
further  to  rev'ive  it  proved  unsuccessful,  and  it  expired 
in  1694.  From  the  latter  date  censorship  has  formed 
no  part  of  English  law.^  This  emancipation,  having 
such  vast  results  in  later  times,  attracted  slight  attention 
at  the  moment.  And  in  fact,  though  theoretically  free, 
the  press  was  still  molested  not  a  little.  It  steadily  rose 
in  influence,  and  in  the  first  thirty  years  of  George  III. 
attained  the  beginnings  of  its  present  greatness.- 

The  last  clause  of  Amendment  I.  deals  with  the  right 
of  petition.  For  many  generations  the  exercise  of  the 
right  was  practically  limited  to  redress  of  grievances,  but 

^  Lord  Macaulay  declared  that  the  emancipation  of  the  press 
had  "  done  more  for  Hberty  and  for  civiHzation  than  the  Great 
Charter  or  the  Bill  of  Rights."  —  History  of  England,  IV.  542. 

■■2  It  is  not  impossible  that  the  example  of  Holland  has  aided 
the  progress  in  America  of  the  idea  of  freedom  of  the  press.  But 
although  Douglas  Campbell  {Puritan  in  Holland,  Eiigland,  and 
America')  strenuously  asserts  that  Holland's  example  has  so  aided, 
he  signally  fails  to  establish  the  point,  and  no  one  else  has  really 
attempted  to  establish  it.  As  a  matter  of  fact,  censorship  of  the 
press  existed  in  the  American  colonies.  In  New  England  this 
lasted  till  about  1755.  See  Tyler,  History  of  American  Litera- 
ture, I.  113.  Thus,  in  1723,  Benjamin  Franklin  was  forced  to 
leave  Massachusetts  for  Pennsylvania  on  account  of  a  libel,  and 
his  brother  was  imprisoned.  A  declaration  of  the  principle  of 
entire  freedom  of  publication  was  incorporated  in  the  second 
constitution  of  Pennsylvania,  in  1790,  only  just  previous  to  the 
amendment  to  the  national  Constitution  referred  to  in  the  text. 
This  action  of  Pennsylvania  distinctly  referred  to  English  laws  and 
usage.  In  1S05  and  in  1821  New  York  recognized  this  principle. 
Other  States  have  made  similar  provisions. 


222  SOURCES   OF  THE    CONSTITUTION.        chap. 

just  before  the  time  of  the  Commonwealth,  petitions  on 
poHtical  subjects  came  into  being,  and  many  such  were 
presented  to  Charles  I.  and  to  the  Long  Parliament. 
There  was  some  intimidation  by  numerous  bodies  of  peti- 
tioners, during  that  stormy  period,  and  it  was  probably 
the  memory  of  this  that  caused  Charles  11.  to  restrain, 
or  rather  to  regulate,  the  right  in  such  manner  as  to  pro- 
tect the  government.  In  the  Bill  of  Rights  of  William 
and  Mary,  the  privilege  received  sanction  in  the  declara- 
tion :  "  It  is  the  right  of  the  subject  to  petition  the  king ; 
and  all  commitments  and  prosecutions  for  such  petition- 
ing are  illegal."^  The  present  practice  dates  from  1779, 
just  previous  to  the  establishment  of  the  American  Con- 
stitution, when  a  widely  organized  attempt  was  made  to 
procure  the  adoption  of  a  certain  measure  in  Parliament, 
by  presenting  numerously  signed  petitions  from  every 
part  of  England.  This  may  properly  be  considered  the 
beginning  of  the  modern  system  of  petitioning  by  which 
public  measures  and  matters  of  public  policy  have  been 
urged  upon  the  attention  of  Parliament.  The  privilege 
came  into  special  prominence  in  the  colonies  at  the 
Revolutionary  epoch,  the  Congress  of  1774  distinctly 
claiming  it  in  the  Declaration  of  Rights  :  "  They  [the 
colonists]  have  a  right  peaceably  to  assemble,  consider 
grievances,  and  petition  the  king,  and  that  all  prosecu- 
tions prohibiting  proclamations  and  commitments  for  the 
same  are  illegal." - 

The  second  amendment  deals  with  the  question  of  a 
1  I  Will,  and  Mary,  Sess.  2,  c.  2.  2  Eighth  Resolution. 


VIII.  THE  BILL    OF  RIGHTS.  Ill 

trained  militia,  and  the  right  of  the  people  to  bear  arms, 
—  a  right  involving  the  latent  ])o\ver  of  resistance  to 
tyrannical  government.  From  prehistoric  days  right  to 
bear  arms  seems  to  hav^e  been  the  badge  of  a  Teutonic 
freeman,  and  closely  associated  with  his  political  privi- 
leges. Such  armed  freemen  made  up  the  military  host 
of  the  tribe.  During  Saxon  times  in  England,  there  was 
a  fyrd,  or  national  militia,'  service  in  which  was  one  of 
the  three  duties  —  trinoda  fiecessitas  —  to  which  every 
alodial  proprietor  was  subject.  This  is  met  in  full  vigour 
long  after  the  Norman  Conquest,  working  its  way  through 
the  superstratum  of  feudaHsm.  It  continued  side  by 
side  with  the  feudal  system,  until,  under  Henry  III.  and 
Edward  I.,  the  two  were  united  in  a  general  national 
armament.  By  the  law  known  as  the  Assize  of  Arms, 
in  1181,  every  freeman  was  required  to  provide  himself 
with  a  doublet  of  mail,  iron  skull-cap,  and  lance.  In  the 
reign  of  Queen  Mary,  this  law  was  altered  to  provide  for 
arms  of  a  more  modern  sort.^  James  I.  abrogated  it.^ 
But  although  the  militia  languished  for  awhile,  as  the 
standing  army  grew  in  elSciency,  it  was  restored  to  vigour 
in  1757.  The  Bill  of  Rights  provided:  "The  subjects 
which  are  Protestants  may  have  arms  for  their  defence, 
suitable    to    their   conditions,  and  as  allowed  by  law."'* 

1  The  fyrd,  the  armed  folkmoot  of  each  shire,  was  originally  the 
only  military  organization  known  to  the  English. 

^  4  and  5  Phil,  and  Mary,  c.  2  and  c.  3. 

^  I  Jac.  c.  25,  §  46. 

■*  I  Will,  and  Mary,  Sess.  2,  c.  2.  Blackstone  remarks  that  this 
declaration  providing  for  the  possession  of  arms  "  is  a  public  al- 


224  SOURCES   OF   THE    CONSTITUTIOX.       chap. 

Upon  this  is  based  the  second  amendment  to  the  Con- 
stitution, which  reads  :  "  A  well-regulated  militia  being 
necessary  for  the  security  of  a  free  state,  the  right  of  the 
people  to  keep  and  bear  arms  shall  not  be  infringed."^ 
And  concerning  it,  Judge  Cooley  remarks :  "  It  was 
adopted,  with  some  modification  and  enlargement,  from 
the  English  Bill  of  Rights  of  i6S8,  where  it  stood  as  a 
protest  against  arbitrary  action  of  the  late  dynasty  in 
disarming  the  people,  and  as  a  pledge  of  the  new  rulers, 
that  this  tyrannical  action  should  cease.  The  right  de- 
clared was  meant  to  be  a  strong  moral  check  against  the 
usurpation  of  arbitrary  power  by  rulers,  and  as  a  neces- 
sary and  efficient  means  of  regaining  rights  temporarily 
overturned  by  usurpation." - 

The  third  amendment  deals  with  the  quartering  of  the 
troops  on  private  citizens,  a  provision  which  speaks  for 
itself,  and  the  object  of  which  is  to  secure  the  enjoyment 

lowance,  under  due  restrictions,  of  the  natural  right  of  resistance 
and  self-preservation,  when  the  sanction  of  society  and  the  laws  are 
found  insufficient  to  restrain  the  violence  of  oppression." — Com- 
mentaries,\.  154. 

1  The  convention  of  Xew  Hampshire  which  acted  on  the  adop- 
tion of  the  national  Constitution,  proposed  as  an  amendment: 
"  Congress  shall  never  disarm  any  citizen,  unless  such  as  are,  or 
have  been,  in  actual  rebellion."  The  conventions  of  Virginia  and 
New  York  proposed :  "  That  the  people  have  a  right  to  keep  and 
bear  arms;  that  a  well-regulated  militia,  composed  of  the  body  of  the 
people,  trained  to  arms,  is  the  proper,  natural,  and  safe  defence  of 
a  free  state  ";  and  "  that  any  person  religiously  scrupulous  of  bear- 
ing arms,  ought  to  be  exempted,  upon  payment  of  an  equivalent  to 
employ  another  in  his  stead." 

-  Principles  of  Constitutional  Law,  270. 


VIII.  THE   BILL    OF  RIGHTS.  225 

of  the  great  right  of  the  common  law,  that  a  man's  house 
shall  be  his  castle,  privileged  against  civil  and  military- 
intrusion.  Among  the  tyrannies  objected  to  in  the  Peti- 
tion of  Right  of  the  time  of  Charles  I.  is,  that  "  of  late 
great  companies  of  soldiers  and  mariners  have  been  dis- 
persed into  divers  counties  of  the  realm,  and  the  inhabi- 
tants, against  their  wills,  have  been  compelled  to  receive 
them  into  their  houses,  and  there  to  suffer  them  to 
sojourn,  against  the  laws  and  customs  of  this  realm,  and 
to  the  great  grievance  and  vexation  of  the  people."  ^ 
By  a  law  of  Charles  II.  it  was  enacted  "  that  no  officer, 
militar)-  or  civil,  or  other  persons  shall  quarter  or  billet 
any  soldier  upon  any  inhabitant  of  this  realm,  without 
his  consent,  and  that  every  such  inhabitant  of  this  realm 
may  refuse  to  quarter  any  soldier,  notwithstanding  any 
order  whatsoever."  -  Nevertheless,  a  complaint  is  to  be 
found  in  the  Bill  of  Rights,  that  James  II.  had  violated 
fundamental  liberties  of  the  realm  by,  among  other 
things,  '-'quartering  soldiers  contrary  to  law,"^  and  a  simi- 
lar complaint  against  both  king  and  Parliament  is  recorded 
in  the  Declaration  of  Independence  :  "  He  [George  III.] 
has  combined  with  others  .  .  .  giving  his  assent  to  their 
pretended    legislation,    for   quartering    large    bodies    of 

1  3  Car.  I.  c.  i,  §  6. 

231  Car.  II.  c.  I. 

3  I  Will,  and  Mary,  Sess.  2,  c.  2.  The  pro\-isions  of  this  stat- 
ute and  of  the  Petition  of  Right  against  the  billeting  of  troops 
are  suspended  every  year  by  authority  of  Parliament,  in  the  Mutiny 
Act,  which  accords  express  permission  to  billet  soldiers  in  inns  and 
victualling-houses. 


226  SOURCES   OF  THE    COXSTITUTIOX.        chap. 

armed  troops  among  us."  The  language  of  the  consti- 
tutional amendment  is :  "  No  soldier  shall,  in  time  of 
peace,  be  quartered  in  any  house  without  the  consent 
of  the  owner,  nor  in  time  of  war,  but  in  a  manner  to  be 
prescribed  by  law." 

The  fourth  amendment  touches  upon  the  question  of 
protection  against  civil  search  without  formal  warrant, 
and  the  subject  of  general  warrants. 

The  warrant  —  the  paper  which  authorizes  so  grave  an 
act  as  depriving  a  citizen  of  personal  Hberty  —  is  neces- 
sarily surrounded  with  safeguards  to  protect  the  private 
individual  against  unjust  and  arbitrary  police  measures. 
The  English  race  has  been  insistent  with  reference  to 
these  safeguards,  and  the  warrant,  as  we  now  have  it,  is  a 
characteristically  English  institution.  A  warrant  must 
always  name  the  person  against  whom  it  is  directed.  A 
general  warrant,  i.e.  one  that  does  not  name  the  person, 
is  contrary  to  English  freedom.^  But  the  latter  point  was 
not  established  until  just  before  the  American  Revolution, 
—  the  illegal  custom  of  the  arresting  of  persons  on  general 
warrants  lingering  even  into  the  reign  of  George  III., 
when  it  received  its  death  blow  in  the  famous  case  of 
Wilkes.  The  question  was  raised  by  the  printing  of  the 
libellous  Number  Forty-Five  of  the  North  Briton,  the 
authorship  of  which  was  at  first  unknown.  Lord  Halifax, 
one  of  the  secretaries  of  state,  issued  a  general  warrant 
describing  no  individual,  but  empowering  the  police  to 
take  whomever  they  might  think  guilty ;  which  resulted  in 
^  See  Lieber,  Civil  Liberty  and  Self- Government,  62. 


VIII.  THE  BILL    OF  RIGHTS.  227 

the  arrest  of  many  innocent  persons,  and  finally,  among 
them,  of  the  culprit  himself,  —  with  seizure  of  his  papers.' 
He  resisted  on  the  ground  that  he  had  not  been  described 
in  the  warrant.  And  after  litigation  which  aroused  the 
excited  sympathy  of  both  England  and  the  colonies,  he 
won  legal  decision  in  his  favour,  and  obtained  damages 

1  "  There  was  a  libel,  but  who  was  the  libeller?  Ministers  knew 
not,  nor  waited  to  inquire,  after  the  accustomed  forms  of  law;  but 
forthwith,  Lord  Halifax,  one  of  the  secretaries  of  state,  issued  a 
warrant,  directing  four  messengers,  taking  with  them  a  constable, 
to  search  for  the  authors,  printers,  and  publishers,  and  to  apprehend 
and  seize  them,  together  with  their  papers,  and  bring  them  in  safe 
custody  before  him.  Xo  one  hanng  been  charged  or  even  sus- 
pected, no  evidence  of  crime  ha\"ing  been  offered,  no  one  was 
named  in  this  dread  instrument.  The  offence  only  was  pointed  at; 
not  the  offender.  The  magistrate,  who  should  have  sought  proofs 
of  crime,  deputed  this  ofi&ce  to  his  messengers.  Armed  with  their 
roving  commission,  they  set  forth  in  quest  of  unknown  offenders; 
and  unable  to  take  evidence,  listened  to  rumours,  idle  tales,  and 
curious  guesses.  They  held  in  their  hands  the  libertj*  of  every  man 
whom  they  were  pleased  to  suspect.  Nor  were  they  tritlers  in  their 
work.  In  three  days  they  arrested  no  less  than  forty-nine  persons 
on  suspicion,  —  many  as  innocent  as  Lord  Halifax  himself.  .  .  . 
The  messengers  received  verbal  directions  to  apprehend  Wilkes, 
under  the  general  warrant.  Wilkes,  far  keener  than  the  crown 
lawv-ers,  not  seeing  his  own  name  there,  declared  it '  a  ridiculous 
warrant  against  the  whole  English  nation,'  and  refused  to  obey  it. 
But  after  being  in  custody  of  the  messengers  for  some  hours,  in  his 
own  house,  he  was  taken  away  in  a  chair,  to  appear  before  the 
secretaries  of  state.  No  sooner  had  he  been  removed,  than  the  mes- 
sengers, returning  to  his  house,  proceeded  to  ransack  his  drawers, 
and  carried  off  all  his  private  papers,  including  even  his  will  and 
pocket-book."  —  May,  Constitutional  History  of  England,  II.  246, 
247. 


228  SOURCES   OF  THE    CONSTITUTIOy.        chap. 

against  those  who,  on  a  general  warrant,  had  invaded 
his  liberties.^  The  cause  of  freedom  was  vindicated. 
The  courts  decided  against  the  validity  of  general  war- 
rants, and  the  decision  was  confirmed  by  the  House  of 
Commons  and  sustained  by  popular  opinion.  The 
amendment  to  the  Constitution  reads  :  "  The  right  of 
the  people  to  be  secure  in  their  persons,  houses,  papers, 
and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  warrants  shall  issue,  but 
upon  probable  cause,  supported  by  oath  or  affirmation, 
and  particularly  describing  the  place  to  be  searched,  and 
the  person  or  things  to  be  seized." 

Amendments  V.  to  X.  inclusive  read  as  follows  :  — 
Article  V.  "  No  person  shall  be  held  to  answer  for  a 
capital,  or  otherwise  infamous  crime,  unless  on  a  present- 
ment or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  and  naval  forces,  or  in  the  militia, 
when  in  actual  service  in  time  of  war  or  public  danger ; 
nor  shall  any  person  be  subject  for  the  same  offence  to 
be  twice  put  in  jeopardy  of  life   or  limb  ;  nor  shall  be 

1  Lord  Chief  Justice  Pratt  thus  characterized  the  warrant :  "  The 
defendant  claimed  the  right,  under  precedents,  to  force  persons' 
houses,  break  open  escritoires,  and  seize  their  papers,  upon  a 
general  warrant,  where  no  inventory  is  made  of  the  things  thus 
taken  away,  and  where  no  offenders'  names  are  specified  in  the 
warrant,  and  therefore  a  discretionary  power  given  to  messengers  to 
search  wherever  their  suspicions  may  chance  to  fall.  If  such  a 
power  is  truly  invested  in  a  secretary  of  state,  and  he  can  delegate 
this  power,  it  certainly  may  affect  the  person  and  property  of  every 
man  in  this  kingdom,  and  is  totally  subversive  of  the  liberty  of 
the  subject." 


VIII.  THE  BILL    OF  RIGHTS.  11^ 

compelled  in  any  criminal  case  to  be  a  witness  against 
himself,  nor  be  deprived  of  life,  liberty,  or  property,  with- 
out due  process  of  law;  nor  shall  private  property  be 
taken  for  public  use,  without  just  compensation." 

Article  VI.  "  In  all  criminal  prosecutions,  the  accused 
shall  enjoy  the  right  to  a  speedy  and  public  trial,  by  an 
impartial  jury  of  the  State  or  district  wherein  the  crime 
shall  have  been  committed,  which  district  shall  have  been 
previously  ascertained  by  law,  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation  ;  to  be  confronted  with 
the  witnesses  against  him  ;  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favour,  and  to  have  the  assist- 
ance of  counsel  for  his  defence." 

Article  VII.  '•  In  suits  at  common  law,  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the 
right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried 
by  a  jury  shall  be  otherwise  re-examined  in  any  court  of 
the  United  States  than  according  to  the  niles  of  the 
common  law." ' 

Article  VIII.  "  Excessive  bail  shall  not  be  required, 
nor  excessive  fines  imposed,  nor  cruel  and  unusual  pun- 
ishments inflicted." 

1  Mr.  Justice  Miller,  of  the  United  States  Supreme  Court,  says : 
"  The  first  thing  to  be  observed  about  this  article  is  that  it  prescribes 
this  mode  of  trial  in  '  suits  at  common  law.'  It  does  not  use  the 
same  words  as  the  clause  extending  the  judicial  power  '  to  all  cases 
in  la-v  and  equity.'  It  is  to  be  inferred,  therefore,  that  trial  by  jury, 
as  imposed  by  the  Constitution,  has  relation  to  the  common  law  as 
it  was  understood  in  England  and  to  the  right  to  such  a  trial  in  that 
class  of  cases."  —  Lectures  on  Constitution  of  the  United  States,  ^()2. 


230  SOURCES   OF  THE    CONSTITUTION.        chap. 

Article  IX.  "The  enumeration  of  the  Constitution,  of 
certain  rights,  shall  not  be  construed  to  deny  or  disparage 
others  retained  by  the  people." 

Article  X.  "  The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectively,  or  to  the 
people." 

The  provisions  in  these  articles,  intended  to  assure 
criminal  justice,  are  mainly  from  the  English  common 
law.  The  expression,  "  twice  put  in  jeopardy  of  life  or 
limb,"  has  descended  from  days  when  sanguinary  pun- 
ishments were  frequent.  The  clause,  "  nor  shall  be 
compelled  in  any  criminal  case  to  be  a  witness  against 
himself,"  was  there  placed  to  prevent  repetition  of  the 
inquisitorial  proceedings  once  practised  in  England. 
The  requirement,  that  just  compensation  be  made  for 
private  property  taken  for  public  uses,  rests  upon  Magna 
Charta ;  as  does  also  the  provision  for  speedy  trial,  and 
that  no  person  be  "  deprived  of  life,  liberty,  or  property 
without  due  process  of  law."  ^ 

^  The  expression  "  due  process  of  law  "  is  a  technical  one.  "  It 
has  long  been  in  use  among  law  writers,  and  in  judicial  decisions, 
as  implying  correct  and  orderly  proceedings,  which  are  due  because 
they  observe  all  the  securities  of  private  right  which  are  applicable 
in  the  particular  case.  In  this  sense  it  is  synonymous  with  '  law  of 
the  land,'  as  used  in  the  famous  twenty-ninth  chapter  of  Magna 
Charta.  .  .  .  The  identity  of  the  two  in  meaning  and  purpose  is 
now  well  settled."  —  Cooley,  Principles  of  Constitutional  law,  222. 
"  As  to  the  words  from  Magna  Charta,  after  volumes  spoken  and 
written  with  a  view  to  their  exposition,  the  good  sense  of  mankind 
has  at  length  settled  down  to  this :  that  they  were  intended  to  secure 


viii.  THE   BILL    OF  RIGHTS.  231 

The  common-law  origin  and  force  of  the  claims  in 
the  sixth  amendment  requiring  that  the  accused  be  in- 
formed of  the  nature  and  cause  of  the  accusation,  and  be 
confronted  with  witnesses  against  him,  is  so  understood 
and  admitted  in  practice,  that  surprise  has  been  occa- 
sioned that  these  specifications  should  have  been  thought 
needful.  Of  the  succeeding  proxnsions  of  this  article  for 
"  compulsory  process  of  obtaining  witnesses  in  his  favour 
and  to  have  the  assistance  of  counsel  in  his  defence," 
the  same  caimot  be  said.  For  it  was  a  strange  old 
practice,  derived  from  the  Roman  civil  law,  to  allow  a 
party  accused  of  capital  offence  no  opportunity'  to  clear 
himself  by  the  testimony  of  witnesses  in  his  favour.  The 
practice  was  denounced  by  Sir  Edward  Coke  as  unjust ; 
and  soon  after  the  accession  of  James  I.,  the  House  of 
Commons  carried,  amid  some  opposition  from  the  crown 
and  upper  house,  a  clause  pro\iding  that  in  certain  cases 
witnesses  might  be  sworn  for,  as  well  as  against,  the  ac- 
cused. By  a  statute  of  William  and  Mary,  the  same 
principle  was  established  for  cases  of  treason ;  ^   and  in 

the  indi\'idual  from  the  arbitrary  exercise  of  the  powers  of  govern- 
ment, unrestrained  by  the  established  principles  of  private  right  and 
distributive  justice." — Bank  of  California  v.  Okely,  4  WTieaL  235. 
See  also  Miirray^s  Lessee  v.  Hoboken  Land  Co.,  18  How.  272,  276; 
Taylor  v.  Porter,^  Hill,  (N.Y.)  140,  143;  Hoke  v.  Henderson,  i\. 
Dev.  (X.C.)  i;  Kinney  v.  Beverley,  i  Hen.  &  M.  (Va.)  531; 
James  v.  Reynolds,  2  Tex.  250;  Norman  v.  Heist,  5  W.  &  S. 
(Penn.)  1 71;  Davidson  v.  New  Orleans,  96  U.  S.  Rep.  97;  Web- 
ster in  Dartmouth  College  v.  IFoodward,  4.  WTieat.  518;  \Yeb5ter, 
IVorks,  V.  487. 

1  7  Will.    III.    c.    3.      This    statute   prondes   that   persons   in- 


232  SOURCES   OF   THE    CONSTITUTION.        chap. 

the  reign  of  Queen  Anne,  this  was  extended.^  Yet,  at 
the  period  of  the  construction  of  the  American  Consti- 
tution, the  law  did  not  allow  the  privilege  in  ordinary- 
capital  cases ;  and  the  amendment,  in  extending  it  to  all 
classes  of  criminals  without  restriction,  was,  therefore, 
an  important  improvement  upon  the  usage  of  the  mother- 
country.  Another  singular  English  deficiency  —  the  fail- 
ure in  certain  circumstances  to  give  a  prisoner  under  cap- 
ital accusation  the  benefit  of  counsel  for  his  defence  — 
was  supplied  in  the  American  Constitution  by  the  guar- 
antee of  counsel  in  all  cases.- 

The  eighth  amendment  treats  of  excessive  bail  and 
punishment,  and  is  simply  a  transcript  of  a  clause  in  the 
Bill  of  Rights  framed  at  the  Revolution  of  1688.  Its 
object  is  to  warn  the  national  government  against  such 

dieted  for  high  treason  shall  have  a  copy  of  the  indictment  deliv- 
ered to  them  five  days  at  least  before  the  trial,  and  a  copy  of  the 
panel  of  the  jurors  two  days  before  the  trial;  that  they  shall  be 
allowed  the  assistance  of  counsel  throughout  the  trial,  and  be 
entitled  to  process  of  the  court  to  compel  the  attendance  of  their 
witnesses,  who  must  be  examined  on  oath.  It  removes  any  doubts 
as  to  the  statute  of  Edward  VI.,  by  requiring  the  oaths  of  two 
lawful  witnesses,  unless  the  prisoner  shall  willingly,  without  vio- 
lence, in  open  court  confess  the  charge,  etc. 

1  7  Anne,  c.  21. 

2  In  the  first  State  constitutions  of  Maryland,  New  Jersey,  Penn- 
sylvania, Massachusetts,  and  Vermont,  provision  was  made,  guaran- 
teeing counsel  in  all  cases,  and  from  these  State  provisions  the 
amendment  to  the  national  Constitution  came.  This  defect  in  the 
English  law,  thus  supplied  by  America,  was  remedied  in  the  mother- 
country  by  statute  6  and  7  \Yill.  IV.  c.  114.  See  Cooley,  Consti- 
tutional Limitations,  330-338. 


VIII.  THE   BILL    OF  RIGHTS.  233 

proceedings  as  took  place  in  England  during  the  arbi- 
trary Stuart  period,  —  when  a  demand  for  enormous  bail 
was  often  made  against  persons  obnoxious  to  the  court; 
who,  failing  to  procure  this,  were  thrown  into  prison. 
Excessive  fines  and  amercements  were  also  occasionally 
imposed,  and  vindictive  and  cruel  punishments  meted 
out.  The  clause  in  the  Bill  of  Rights  from  which  the 
amendment  was  drawn  specifies  :  "  That  excessive  bail 
ought  not  to  be  required,  nor  excessive  fines  imposed  ; 
nor  cruel  and  unusual  punishment  inflicted."  ^ 

We  come,  in  conclusion,  to  trial  by  jury  —  as  provided 
in  Article  III.  of  the  Constitution  for  criminal  cases ; 
and  in  the  amendments,  for  criminal  cases  and  civil 
actions  alike  —  one  of  the  most  characteristic  elements  of 
the  American  constitutional  inheritance  from  England. 

The  origin  of  this  ''  bulwark  of  constitutional  liberty  " 
has  been  the  topic  of  a  great  deal  of  learned  discussion 
and  of  many  antagonistic  theories.-     Probably  the  jury  in 

1  I  Will,  and  Mary,  Sess.  2,  c.  2. 

-  Philipps,  On  jfiiries,  and  Probert,  On  the  Ancient  Laws  of 
Cambria,  claim  that  the  jury  system  originated  among  the  Welsh, 
from  whom  the  Anglo-Saxons  borrowed  it.  Selden,  Spelman, 
Coke,  Turner,  Philipps,  and  G.  L.  von  Maurer  regard  it  as  an 
outcome  of  Anglo-Saxon  invention.  Bacon,  Montesquieu,  Black- 
stone,  Savigny,  and  Nicholson  —  preface  to  Wilkins,  Anglo-Saxon 
Laws  —  maintain  that  it  is  an  importation  from  primitive  Germany. 
Wormiers  and  Worsaae  think  it  came  from  the  Danes,  who  in  turn 
derived  it  from  the  Norsemen.  Hickes,  Reeves,  and  others  claim 
a  Norse  origin  through  the  Normans;  and  Conrad  Maurer  points  to 
a  north  German  source.  Of  writers  who  admit  its  Norman  origin, 
Daniels  thinks  the  Normans  found  it  in  France,  Mohl  carries  it 


234  SOURCES   OF  THE    CONSTITUTION.        chap. 

its  earliest  form,  that  of  a  body  of  sworn  recognitors,  was 
introduced  into  England  by  the  Normans,  they  having 
borrowed  it  from  the  Franks.  It  is  traceable  to  the  capit- 
ularies of  the  Carolingian  kings,  and  possibly  through 
these,  to  the  fiscal  regulations  of  the  Theodosian  Code,  — - 
thus  having  some  affinity  to  the  Roman  jurisprudence.^ 
But  although  an  importation,  the  system  gained  its  real 
development  in  England  alone,  and  gradually  ceased  to 
exist  in  Normandy  and  in  the  rest  of  France.  From  a 
simple  beginning  at  the  Conquest,  it  was  consolidated  in 
the  reign  of  Henry  III.,  and  became  one  of  the  settled 

back  to  the  canon  law  of  the  Church,  Meyer  derives  it  from  Asia  by 
way  of  the  Crusades,  and  Maciejowski  derives  it  from  the  Slavic 
neighbours  of  the  Teutonic  invaders  of  England.  Eiitstehung  der 
Schwurgerichte ,  1 1-19.  Bourguignon  says  despairingly,  "  son  origine 
se  perd  dans  la  nuit  des  temps." — Memoire  siir  le  Jury.  See 
Forsyth,  History  of  Trial  by  Jury ;  Gneist,  Self- Government ; 
Glasson,  Hist,  du  Droit  et  des  Inst,  de  t Angleterre,  etc.  Bishop 
Stubbs  —  Constitutional  History  of  England —  and  other  recent 
authorities  accept  the  Carolingian  and  Theodosian  origin,  as  stated 
in  Palgrave,  English  Commonwealth,  corrected  and  adjusted  by 
Dr.  Brunner,  Entstehung  der  Schivurgerichte. 

1  See  Smith,  Dictionary  of  Greek  and  Ro7nan  Antiquities: 
"  Codex  Theodosianus."  Brunner  cites  the  Theodosian  Code : 
"  Super  vacantibus  ac  caducis  .  .  .  certi  etiam  dirigantur  qui  cuncta 
solerter  inquirant  et  cujus  fuerint  facultates  et  si  nemo  eas  sibi 
jure  nititur  retentare.  Ac  si  locum  fisco  factum  esse  claruerit  occu- 
patis  prius  bonis  et  rerum  omnium  descriptione  perfecta  ...  ;  " 
Codex  Theodosianus,  X.  10,  L.  11.  "Ex  privatorum  .  .  .  sollicitu 
dine  contractum  .  .  .  illis  .  .  .  personis  a  quibus  publici  numeris  in- 
juncta  curantur,  nullum  formitem  calumniae  patimur  litis  accendi. 
Cur  enim  continentiam  venditionis  alienae  inquisitio  palatina  rime- 
tur  ?  "    Ibid.  L.  29. 


VIII.  THE  BILL    OF  RIGHTS.  235 

institutions  of  the  land,  in  close  relationship  with  the  old 
Saxon  procedure  of  the  shiremoot.  This  king,  who  has 
been  called  its  father,  applied  it  to  every  variety  of  fiscal 
and  legal  transaction ;  and  down  to  much  later  days  it 
was  used  largely  in  the  assessment  of  taxation.  The  Con- 
stitutions of  Clarendon  give  the  earliest  record  in.  statute 
law  of  its  employment  for  criminal  presentment  and  civil 
inquest.^  Later,  in  the  Assize  of  Clarendon,  provision 
was  made  that  twelve  men  from  each  hundred,  with  four 
from  each  township,  should  be  sworn  to  present  all 
reputed  criminals  of  their  district  in  each  county  court,  — 
a  jury  of  presentment,  which  may  have  been,  in  part,  an 
enlargement  of  a  Saxon  institution  existing  as  far  back  as 
the  reign  of  Ethelred  II.,  and  which,  as  regulated  by  the 
Articles  of  Visitation  of  Richard  I.,  gave  rise  to  the  grand 
jury  of  modern  times.  From  a  desire  to  still  further 
promote  the  security  of  justice,  there  arose  a  procedure 
of  having  the  testimony  of  this  body  examined  by  a 
second  body  —  the  petit  jury  —  and  this  procedure  event- 
ually became  settled  usage.^ 

But  at  first  the  process  of  trial  by  jury  was  different 
in  many  respects  from  that  with  which  we  are  now 
familiar.  Palgrave  states  this  difference  with  admirable 
clearness.  "Jurymen  in  the  present  day  are  triers  of 
the  issue ;  they  are  individuals  who  found  their  opinion 
upon  the  evidence,  whether  oral  or  written,  adduced 
before  them ;  and  the  verdict  delivered  by  them  is  their 
declaration  of  the  judgment  which  they  have  found. 
1  A.D.  1164.  -  A.U.  1 194. 


236  SOUjRCES   OF  THE    CONSTITUTION.        chap. 

But  the  ancient  jurymen  were  not  impanelled  to  examine 
into  the  credibility  of  evidence  ;  the  question  was  not 
discussed  and  argued  before  them ;  they,  the  jurymen, 
were  the  witnesses  themselves,  who,  of  their  own  knowl- 
edge, and  without  the  aid  of  other  testimony,  afforded 
their  evidence  respecting  the  fact  in  question  to  the 
best  of  their  belief.  In  its  primitive  form  a  trial  by 
jury  was  therefore  only  a  trial  by  witnesses. "  ^  That  is 
to  say,  the  jurors  decided  from  their  own  personal  knowl- 
edge of  the  facts,  or  from  tradition,  without  other  wit- 
nesses than  themselves.  And,  incidentally,  this  explains 
an  important  point,  —  namely,  why  the  trial  was  properly 
held  in  the  locality  of  the  accused's  residence,  and  the 
jury  chosen  from  the  vicinage  in  which  the  question  arose. ^ 
The  development  by  which  jurors  ceased  to  be  wit- 
nesses, and  became  judges  of  the  fact,  is  common  to 
both  the  criminal  and  the  civil  jury,  and  is  traceable  from 
the  time  of  Edward  III.^  Out  of  the  difficulty  of  secur- 
ing twelve  men  acquainted  with  the  matter  in  trial 
and  able  to  give  a  unanimous  verdict  based  on  personal 
knowledge,  grew  the  custom  of  permitting  the  jurors 
who  were  first  summoned  to  add  to  their  number  per- 
sons   having    such   knowledge.''     And    later   on,  jurors 

■^  English  Commojnvealth,  I.  243. 

2  "The  testimony  of  the  neighbourhood  was  appealed  to  for  the 
purpose  of  deciding  questions  which  related  to  matters  of  general 
concern."  —  Forsyth,  Trial  by  ynry,  92. 

3  Year  Books,  25  Edw.  III. 

■*  "  The  proceeding  by  assize  was,  in  fact,  merely  the  sworn  tes- 
timony of  a  certain  number  of  persons  summoned  to  give  evidence 


viii.  THE  BILL    OF  RIGHTS.  237 

without  information  were  separated  from  those  possess- 
ing it,  the  former  becoming  judges  of  evidence  only, 
and  the  latter  witnesses ;  a  decision  being  given  by  the 
former  upon  the  testimony  of  the  latter,  and  the  law 
in  the  case  being  decided  by  the  presiding  official  in 
the  king's  name.^  By  1450  we  have  distinct  evidence 
that  the  mode  of  procedure  was  the  same  as  that  in 
modern  use,-  though  in  occasional  instances  the  ancient 
functions  of  jurors  lingered  as  late  as  to  the  accession 
of  the  House  of  Hanover. 

The  Declaration  of  Independence  complains  of  the 
British  government  "  for  depriving  us  in  many  cases  of 
the  benefits  of  trial  by  jury,"  and  for  "  transporting  us 
beyond  seas  to  be  tried  for  pretended  offences." 

"Trial  by  jury,"  it  has  been  said,  "is  justly  dear  to  the 
American  people.  It  has  always  been  an  object  of  deep 
interest  and  solicitude,  and  every  encroachment  upon  it 

upon  matters  within  their  own  knowledge.  They  were  themselves 
only  witnesses.  If  all  were  ignorant  of  the  facts,  a  fresh  jury  had 
to  be  summoned;  if  some  of  them  only  were  ignorant,  or  if  they 
could  not  agree,  others  were  to  be  added  —  a  process  subsequently 
called  affofcing  the  jury  —  until  a  verdict  could  be  obtained  from 
twelve  unanimous  witnesses." — Taswell-Langmead,  English  Con- 
stitutional History,  1 66. 

1  As  a  result  of  this  "  witnesses  were  examined  and  cross- 
examined  in  open  court;  the  flood  gates  of  forensic  eloquence  were 
opened,  and  full  scope  given  to  the  advocate  to  exercise  his  inge- 
nuity and  powers  of  persuasion  on  the  jurors,  to  whose  discretion 
the  power  of  judging  on  matters  of  fact  was  now  entrusted."  — 
Starkie,  "Trial  by  Jury,"  La7v  Review,  No.  IV.,  August,  1S45. 

-  Fortesque,  De  Laudibus  Legumes  AngcE,  c.  26. 


238  SOURCES   OF   THE    CONSTITUTION.        chap. 

has  been  watched  with  great  jealousy."  ^  "  The  privilege 
in  criminal  cases  has  been  looked  upon  as  a  necessary 
part  of  the  liberties  of  the  people,  and  a  sentiment 
attaches  to  it  which  will  scarcely  suffer  its  value  to  be 
questioned.  Every  State  constitution  preserves  its  suits 
in  the  State  courts,  and  every  new  and  revised  constitu- 
tion repeats  the  guaranty  of  it.  Even  the  common-law 
requirement  of  unanimity  in  the  verdict,  which  is  of  more 
than  doubtful  value,  is  retained  without  inquiry  or  ques- 
tion, because  it  has  existed  from  time  immemorial."  ^ 

The  proud  words  of  retort  to  Montesquieu,  with  which 
Blackstone  ends  his  panegyric  on  the  jury  system,  are  as 
applicable  to  America  as  to  England ;  "  A  celebrated 
French  writer,  who  concludes  that  Rome,  Sparta,  and 
Carthage  have  lost  their  liberties,  therefore  those  of 
England  in  time  must  perish,  should  have  recollected 
that  Rome,  Sparta,  and  Carthage,  at  the  time  when  their 
liberties  were  lost,  were  strangers  to  the  trial  by  jury."  ^ 


Whatever  may  be  in  store  for  America,  her  past  is 
closely  inwrought  with  that  of  England.  Her  laws,  as 
her  language,  have  descended  to  her.  For,  though  our 
ancient  Teutonic  race,  in  these  new  days,  may  encircle 
the  globe,  and  find  itself  scattered  on  all  continents  and 
beside   all  seas,  it  will  have   ever  one  common  home. 

1  Parsons  v.  Bedford,  3  Pet.  433,  446. 

2  Cooley,  Principles  of  Constitutional  Law,  12,1  ^  '^1>^- 
^  Comvientaries,  Book  III.  379. 


VIII.  THE  BILL    OF  RIGHTS.  239 

The  Constitution  of  the  United  States  possesses  much 
that  is  peculiar  to  itself.  It  is  not  the  English  Consti- 
tution of  any  age.  Yet  it  is  "  heir  of  all  the  ages  "  of 
English  histor)'.  For  the  most  part,  as  we  have  seen,  it 
applies  to  new  conditions,  time-tried  principles  of  free 
government. 

It  is  well  thus  to  call  to  mind  that  what  is  best  and 
noblest  in  American  governmental  institutions  is  safely 
founded  upon  an  historic  past.  The  oak  of  English 
freedom  that  the  fathers  of  America  transplanted,  has 
grown  old  and  gnarled  and  stanch  and  great  of  girth,  and 
its  firm  roots  have  struck  do\ATi  deep  into  the  soil. 
Though  clouds  of  social  and  political  problem  may 
lower  above  it,  it  recks  not  of  momentar)'  sunshine  or 
passing  tempest,  —  that  sturdy  oak,  bounded  by  the  suc- 
ceeding circles  of  the  centuries,  and  growing  only  more 
strong  u-ith  the  ongoing  of  the  years. 


APPENDIX 


APPENDIX. 


CONSTITUTIOxN    OF   THE   UNITED   STATES. 

We,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity,  provide 
for  the  common  defence,  promote  the  general  welfare,  and  secure 
the  blessings  of  liberty  to  ourselves  and  our  posterity,  do  ordain 
and  establish  this  Constitution  for  the  United  States  of  America. 

ARTICLE    I. 

Section  i.  All  legislative  powers  herein  granted  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  consist  of  a  Senate 
and  House  of  Representatives. 

Sec.  2.  The  House  of  Representatives  shall  be  composed  of 
members  chosen  every  second  year  by  the  people  of  the  several 
States,  and  the  electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the  State 
legislature. 

No  person  shall  be  a  Representative  who  shall  not  have  attained 
the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant 
of  that  State  in  which  he  shall  be  chosen. 

[Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union,  ac- 
cording to  their  respective  numbers,  which  shall  be  determined  by 
adding  to  the  whole  number  of  free  persons,  including  those  bound 
to  service  for  a  term  of  years,  and  excluding  Indians  not  taxed, 

243 


244  SOURCES   OF   THE    CONSTITUTION. 

three-fifths  of  all  other  persons.]  ^  The  actual  enumeration  shall 
be  made  within  three  years  after  the  first  meeting  of  the  Congress 
of  the  United  States,  and  within  every  subsequent  term  of  ten 
years,  in  such  manner  as  they  shall  by  law  direct.  The  number  of 
Representatives  shall  not  exceed  one  for  every  thirty  thousand,  but 
each  State  shall  have  at  least  one  Representative;  and  until  such 
enumeration  shall  be  made,  the  State  of  New  Hampshire  shall  be 
entitled  to  choose  three,  Massachusetts  eight,  Rhode  Island  and 
Providence  Plantations  one,  Connecticut  five,  New  York  six,  New 
Jersey  four,  Pennsylvania  eight,  Delaware  one,  Maryland  six,  Vir- 
ginia ten,  North  Carolina  five.  South  Carolina  five,  and  Georgia 
three. 

When  vacancies  happen  in  the  representation  from  any  State,  the 
executive  authority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies. 

The  House  of  Representatives  shall  choose  their  speaker  and 
other  officers;   and  shall  have  the  sole  power  of  impeachment. 

Sec.  3.  The  Senate  of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  chosen  by  the  legislature  thereof,  for 
six  years;   and  each  Senator  shall  have  one  vote. 

Immediately  after  they  shall  be  assembled  in  consequence  of  the 
first  election,  they  shall  be  divided  as  equally  as  may  be  into  three 
classes.  The  seats  of  the  Senators  of  the  first  class  shall  be  vacated 
at  the  expiration  of  the  second  year,  of  the  second  class  at  the 
expiration  of  the  fourth  year,  and  of  the  third  class  at  the  expira- 
tion of  the  sixth  year,  so  that  one-third  may  be  chosen  every  second 
year;  and  if  vacancies  happen  by  resignation,  or  otherwise,  during 
the  recess  of  the  legislature  of  any  State,  the  executive  thereof  may 
make  temporary  appointments  until  the  next  meeting  of  the  legis- 
lature, which  shall  then  fill  such  vacancies. 

No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the 
age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that 
State  for  which  he  shall  be  chosen. 

1  The  clause  included  in  brackets  is  amended  by  the  XlVth  Amend- 
ment, 2d  section. 


APPENDIX.  245 

The  Vice-President  of  the  United  States  shall  be  President  of  the 
Senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

The  Senate  shall  choose  their  other  officers,  and  also  a  President 
pro  tempore,  in  the  absence  of  the  Vice-President,  or  when  he  shall 
exercise  the  office  of  President  of  the  United  States. 

The  Senate  shall  have  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation. 
When  the  President  of  the  United  States  is  tried,  the  Chief  Justice 
shall  preside;  and  no  person  shall  be  con\-icted  without  the  concur- 
rence of  two-thirds  of  the  members  present. 

Judgment  in  cases  of  impeachment  shall  not  extend  further  than 
to  removal  from  office,  and  disqualification  to  hold  and  enjoy  any 
office  of  honour,  trust,  or  profit  under  the  United  States;  but  the 
party  convicted  shall  nevertheless  be  liable  and  subject  to  indict- 
ment, trial,  judgment,  and  punishment,  according  to  law. 

Sec.  4.  The  times,  places,  and  manner  of  holding  elections  for 
Senators  and  Representatives  shall  be  prescribed  in  each  State  by 
the  legislature  thereof;  but  the  Congress  may  at  any  time  by  law 
make  or  alter  such  regulations,  except  as  to  the  places  of  choosing 
Senators. 

The  Congress  shall  assemble  at  least  once  in  ever)'  year,  and 
such  meeting  shall  be  on  the  first  Monday  in  December,  unless  they 
shall  by  law  appoint  a  different  day. 

Sec.  5.  Each  house  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members,  and  a  majority  of  each  shall 
constitute  a  quorum  to  do  business;  but  a  smaller  number  may 
adjourn  from  day  to  day,  and  may  be  authorized  to  compel  the 
attendance  of  absent  members,  in  such  manner,  and  under  such 
penalties,  as  each  house  may  provide. 

Each  house  may  determine  the  rules  of  its  proceedings,  punish 
its  members  for  disorderly  behaviour,  and,  with  the  concurrence  of 
two-thirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may  in  their 
judgment  require  secrecy;  and  the  yeas  and  nays  of  the  members 
of  either  house  on  any  question  shall,  at  the  desire  of  one-fifth  of 
those  present,  be  entered  on  the  journal. 


246  SOURCES   OF  THE   CONSTITUTION. 

Neither  house,  during  the  session  of  Congress,  shall,  without  the 
consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to  any 
other  place  than  that  in  which  the  two  houses  shall  be  sitting. 

Sec.  6.  The  Senators  and  Representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  by  law,  and  paid  out 
of  the  Treasury  of  the  United  States.  They  shall  in  all  cases, 
except  treason,  felony,  and  breach  of  the  peace,  be  privileged  from 
arrest  during  their  attendance  at  the  session  of  their  respective 
houses,  and  in  going  to  and  returning  from  the  same;  and  for  any 
speech  or  debate  in  either  house  they  shall  not  be  questioned  in 
any  other  place. 

No  Senator  or  Representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office  under  the  authority 
of  the  United  States,  which  shall  have  been  created,  or  the  emolu- 
ments whereof  shall  have  been  increased  during  such  time;  and  no 
person  holding  any  office  under  the  United  States  shall  be  a 
member  of  either  house  during  his  continuance  in  office. 

Sec.  7.  All  bills  for  raising  revenue  shall  originate  in  the  House 
of  Representatives;  but  the  Senate  may  propose  or  concur  with 
amendments  as  on  other  bills. 

Every  bill  which  shall  have  passed  the  House  of  Representatives 
and  the  Senate  shall,  before  it  become  a  law,  be  presented  to  the 
President  of  the  United  States;  if  he  approve  he  shall  sign  it, 
but  if  not  he  shall  return  it,  with  his  objections,  to  that  house  in 
which  it  shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If  after  such 
reconsideration  two-thirds  of  that  house  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  reconsidered,  and  if  approved 
by  two-thirds  of  that  house,  it  shall  become  a  law.  But  in  all  such 
cases  the  votes  of  both  houses  shall  be  determined  by  yeas  and  nays, 
and  the  names  of  the  persons  voting  for  and  against  the  bill  shall  be 
entered  on  the  journal  of  each  house  respectively.  If  any  bill  shall 
not  be  returned  by  the  President  within  ten  days  (Sundays  excepted) 
after  it  shall  have  been  presented  to  him,  the  same  shall  be  a  law, 
in  like  manner  as  if  he  had  signed  it,  unless  the  Congress  by  their 
adjournment  prevents  its  return,  in  which  case  it  shall  not  be  a  law. 


APPENDIX.  247 

Every  order,  resolution,  or  vote  to  which  the  concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary  (except 
on  a  question  of  adjournment)  shall  be  presented  to  the  President 
of  the  United  States;  and,  before  the  same  shall  take  effect,  shall 
be  approved  by  him,  or,  being  disapproved  by  him,  shall  be  repassed 
by  two-thirds  of  the  Senate  and  House  of  Representatives,  accord- 
ing to  the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 

Sec.  8.  The  Congress  shall  have  power,  —  to  lay  and  collect 
taxes,  duties,  imposts,  and  excises,  to  pay  the  debts  and  provide 
for  the  common  defence  and  general  welfare  of  the  United  States ; 
but  all  duties,  imposts,  and  excises  shall  be  uniform  throughout  the 
United  States; 

To  borrow  money  on  the  credit  of  the  United  States ; 

To  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes; 

To  establish  an  uniform  rule  of  naturalization,  and  uniform  laws 
on  the  subject  of  bankruptcies  throughout  the  United  States; 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin, 
and  fix  the  standard  of  weights  and  measures; 

To  provide  for  the  punishment  of  counterfeiting  the  securities 
and  current  coin  of  the  United  States; 

To  establish  post-offices  and  post-roads. 

To  promote  the  progress  of  science  and  useful  arts,  by  securing 
for  limited  times  to  authors  and  inventors  the  exclusive  right  to 
their  respective  writings  and  discoveries; 

To  constitute  tribunals  inferior  to  the  Supreme  Court; 

To  define  and  punish  piracies  and  felonies  committed  on  the 
high  seas,  and  offences  against  the  law  of  nations; 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water; 

To  raise  and  support  armies,  but  no  appropriation  of  money  to 
that  use  shall  be  for  a  longer  term  than  two  years; 

To  provide  and  maintain  a  na\'}.'; 

To  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces; 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions; 


248  SOURCES    OF  THE    CONSTITUTION. 

To  provide  for  organizing,  arming,  and  disciplining  the  militia, 
and  for  governing  such  part  of  them  as  may  be  employed  in  the 
service  of  the  United  States,  reserving  to  the  States  respectively 
the  appointment  of  the  officers,  and  the  authority  of  training  the 
militia  according  to  the  discipline  prescribed  by  Congress; 

To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  miles  square)  as  may,  by  cession 
of  particular  States,  and  the  acceptance  of  Congress,  become  the 
seat  of  the  Government  of  the  United  States,  and  to  exercise  like 
authority  over  all  places  purchased  by  the  consent  of  the  legislature 
of  the  State  in  which  the  same  shall  be,  for  the  erection  of  forts, 
magazines,  arsenals,  dockyards,  and  other  needful  buildings;  — and 

To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying 
into  execution  the  foregoing  powers,  and  all  other  powers  vested  by 
this  Constitution  in  the  Government  of  the  United  States,  or  in  any 
department  or  officer  thereof. 

Sec.  9.  The  migration  or  importation  of  such  persons  as  any  of 
the  States  now  existing  shall  think  proper  to  admit,  shall  not  be 
prohibited  by  the  Congress  prior  to  the  year  one  thousand  eight 
hundred  and  eight,  but  a  tax  or  duty  may  be  imposed  on  such 
importation,  not  exceeding  ten  dollars  for  each  person. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when  in  cases  of  rebellion  or  invasion  the  public 
safety  may  require  it. 

No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

No  capitation,  or  other  direct  tax  shall  be  laid,  unless  in  propor- 
tion to  the  census  or  enumeration  hereinbefore  directed  to  be 
taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State. 

No  preference  shall  be  given  by  any  regulation  of  commerce  or 
revenue  to  the  ports  of  one  State  over  those  of  another;  nor  shall 
vessels  bound  to,  or  from,  one  State  be  obliged  to  enter,  clear,  or 
pay  duties  in  another. 

No  money  shall  be  drawn  from  the  Treasury,  but  in  consequence 
of  appropriations  made  by  law;  and  a  regular  statement  and  account 
of  the  receipts  and  the  expenditures  of  all  public  money  shall  be 
published  from  time  to  time. 


APPENDIX.  249 

No  title  of  nobility  shall  be  granted  by  the  United  States;  and 
no  person  holding  any  office  of  profit  or  trust  under  them  shall, 
without  the  consent  of  the  Congress,  accept  of  any  present,  emolu- 
ment, office,  or  title,  of  any  kind  whatever,  from  any  king,  prince, 
or  foreign  state. 

Sec.  io.  No  State  shall  enter  into  any  treaty,  alliance,  or  confed- 
eration; grant  letters  of  marque  or  reprisal;  coin  money;  emit 
bills  of  credit;  make  anything  but  gold  and  silver  coin  a  tender  in 
payment  of  debts;  pass  any  bill  of  attainder,  ex  post  facto  law,  or 
law  impairing  the  obligation  of  contracts,  or  grant  any  title  of 
nobility. 

No  State  shall,  without  the  consent  of  the  Congress,  lay  any  imposts 
or  duties  on  imports  or  exports,  except  what  may  be  absolutely  neces- 
sary for  executing  its  inspection  laws;  and  the  net  produce  of  all 
duties  and  imposts,  laid  by  any  State  on  imports  or  exports,  shall 
be  for  the  use  of  the  Treasury  of  the  United  States;  and  all  such 
laws  shall  be  subject  to  the  revision  and  control  of  the  Congress. 

No  State  shall,  without  the  consent  of  the  Congress,  lay  any  duty 
of  tonnage,  keep  troops  or  ships  of  war  in  time  of  peace,  enter  into 
any  agreement  or  compact  with  another  State,  or  with  a  foreign 
power,  or  engage  in  war,  unless  actually  invaded,  or  in  such  immi- 
nent danger  as  will  not  admit  of  delay. 

ARTICLE  II. 

Section  i.  The  executive  power  shall  be  vested  in  a  President 
of  the  United  States  of  America.  He  shall  hold  his  office  during 
the  term  of  four  years,  and,  together  with  the  Vice-President,  chosen 
for  the  same  term,  be  elected  as  follows :  — 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof 
may  direct,  a  number  of  electors  equal  to  the  whole  number  of 
Senators  and  Representatives  to  which  the  State  may  be  entitled  in 
the  Congress;  but  no  Senator  or  Representative,  or  person  holding 
an  office  of  trust  or  profit  under  the  United  States,  shall  be  appointed 
an  elector. 

[The  electors  shall  meet  in  their  respective  States,  and  vote  by 
ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  inhabi- 


250  SOURCES   OF  THE    CONSTITUTION. 

tant  of  the  same  State  with  themselves.  And  they  shall  make  a  list 
of  all  the  persons  voted  for,  and  of  the  number  of  votes  for  each; 
which  list  they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat 
of  the  Government  of  the  United  States,  directed  to  the  President 
of  the  Senate.  The  President  of  the  Senate  shall,  in  the  pres- 
ence of  the  Senate  and  the  House  of  Representatives,  open  all  the 
certificates,  and  the  votes  shall  then  be  counted.  The  person  having 
the  greatest  number  of  votes  shall  be  the  President,  if  such  number 
be  a  majority  of  the  whole  number  of  electors  appointed;  and  if 
there  be  more  than  one  who  have  such  majority,  and  have  an  equal 
number  of  votes,  then  the  House  of  Representatives  shall  immedi- 
ately choose  by  ballot  one  of  them  for  President;  and  if  no  person 
have  a  majority,  then  from  the  five  highest  on  the  list  the  said  House 
shall  in  like  manner  choose  the  President.  But  in  choosing  the 
President,  the  votes  shall  be  taken  by  States,  the  representation  from 
each  State  having  one  vote;  a  quorum  for  this  purpose  shall  con- 
sist of  a  member  or  members  from  two-thirds  of  the  States,  and  a 
majority  of  all  the  States  shall  be  necessary  to  a  choice.  In  every 
case,  after  the  choice  of  the  President,  the  person  having  the  greatest 
number  of  votes  of  the  electors  shall  be  the  Vice-President.  But 
if  there  should  remain  two  or  more  who  have  equal  votes,  the 
Senate  shall  choose  from  them  by  ballot  the  Vice-President.]  ^ 

The  Congress  may  determine  the  time  of  choosing  the  electors, 
and  the  day  on  which  they  shall  give  their  votes;  which  day  shall 
be  the  same  throughout  the  United  States. 

No  person  except  a  natural-born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution,  shall 
be  eligible  to  the  office  of  President;  neither  shall  any  person  be 
eligible  to  that  office  who  shall  not  have  attained  to  the  age  of 
thirty-five  years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

In  case  of  the  removal  of  the  President  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and  duties  of 
the  said  office,  the  same  shall  devolve  on  the  Vice-President,  and 

1  This  clause  in  brackets  has  been  superseded  by  the  Xllth  Amend- 
ment. 


APPENDIX.  251 

the  Congress  may  by  law  provide  for  the  case  of  removal,  death, 
resignation,  or  inability,  both  of  the  President  and  Vice-President, 
declaring  what  officer  shall  then  act  as  President,  and  such  officer 
shall  act  accordingly,  until  the  disability  be  removed,  or  a  President 
shall  be  elected. 

The  President  shall,  at  stated  times,  receive  for  his  services  a 
compensation,  which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected,  and  he 
shall  not  receive  within  that  period  any  other  emolument  from  the 
United  States,  or  any  of  them. 

Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the 
following  oath  or  affirmation  : 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute  the 
office  of  President  of  the  United  States,  and  will,  to  the  best  of  my 
ability,  preserve,  protect,  and  defend  the  Constitution  of  the  United 
States." 

Sec.  2.  The  President  shall  be  commander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the  several 
States,  when  called  into  the  actual  service  of  the  United  States;  he 
may  require  the  opinion,  in  writing,  of  the  principal  officer  in  each 
of  the  executive  departments,  upon  any  subject  relating  to  the  duties 
of  their  respective  offices,  and  he  shall  have  power  to  grant  reprieves 
and  pardons  for  offences  against  the  United  States,  except  in  cases 
of  impeachment. 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the 
Senate,  to  make  treaties,  provided  two-thirds  of  the  Senators  present 
concur  ;  and  he  shall  nominate,  and  by  and  with  the  advice  and 
consent  of  the  Senate,  shall  appoint  ambassadors,  other  public  min- 
isters and  consuls,  judges  of  the  Supreme  Court,  and  all  other  officers 
of  the  United  States,  whose  appointments  are  not  herein  otherwise 
provided  for,  and  which  shall  be  established  by  law;  but  the  Con- 
gress may  by  law  vest  the  appointment  of  such  inferior  officers,  as 
they  think  proper,  in  the  President  alone,  in  the  courts  of  laws,  or 
in  the  heads  of  departments. 

The  President  shall  have  power  to  fill  up  all  vacancies  that  may 
happen  during  the  recess  of  the  Senate,  by  granting  commissions 
which  shall  expire  at  the  end  of  their  next  session. 


252  SOURCES   OF   THE    CONSTITUTION. 

Sec.  3.  He  shall  from  time  to  time  give  to  the  Congress  informa- 
tion of  the  state  of  the  Union,  and  recommend  to  their  consideration 
such  measures  as  he  shall  judge  necessary  and  expedient;  he  may, 
on  extraordinary  occasions,  convene  both  houses,  or  either  of  them, 
and  in  case  of  disagreement  between  them,  with  respect  to  the  time 
of  adjournment,  he  may  adjourn  them  to  such  time  as  he  shall  think 
proper;  he  shall  receive  ambassadors  and  other  public  ministers; 
he  shall  take  care  that  the  laws  be  faithfully  executed,  and  shall 
commission  all  the  officers  of  the  United  States. 

Sec.  4.  The  President,  Vice-President,  and  all  civil  officers  of  the 
United  States,  shall  be  removed  from  office  on  impeachment  for, 
and  conviction  of,  treason,  bribery,  or  other  high  crimes  and  misde- 
meanours. 

ARTICLE  III. 

\  (    Section  i.   The  judicial   power  of  the  United  States  shall  be 

»^\_(t,£_<  vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as  the  Con- 
gress may  from  time  to  time  ordain  and  establish.  The  judges,  both 
of  the  Supreme  and  inferior  courts,  shall  hold  their  offices  during 
good  behaviour,  and  shall,  at  stated  times,  receive  for  their  services 
a  compensation,  which  shall  not  be  diminished  during  their  continu- 
ance in  office. 

Sec.  2.  The  judicial  power  shall  extend  to  all  cases,  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority; 
to  all  cases  affecting  ambassadors,  other  public  ministers,  and  con- 
suls; to  all  cases  of  admiralty  and  maritime  jurisdiction;  to  contro- 
versies to  which  the  United  States  shall  be  a  party;  to  controversies 
between  two  or  more  States,  between  a  State  and  citizens  of  another 
State,  between  citizens  of  different  States,  between  citizens  of  the 
same  State  claiming  lands  under  grants  of  different  States,  and 
between  a  State,  or  the  citizens  thereof,  and  foreign  states,  citizens, 
or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers  and  con- 
suls, and  those  in  which  a  State  shall  be  a  party,  the  Supreme  Court 
shall  have  original  jurisdiction.  In  all  the  other  cases  before  men- 
tioned, the  Supreme  Court  shall  have  appellate  jurisdiction,  both  as 


APPENDIX.  253 

to  law  and  fact,  with  such  exceptions,  and  under  such  regulations  as 
the  Congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be 
by  jury;  and  such  trial  shall  be  held  in  the  State  where  the  said 
crimes  shall  have  been  committed;  but  when  not  committed  within 
any  State,  the  trial  shall  be  at  such  place  or  places  as  the  Congress 
may  by  law  have  directed. 

Sec.  3.  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort.  No  person  shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses  to  the  same  overt  act,  or 
on  confession  in  open  court. 

The  Congress  shall  have  power  to  declare  the  punishment  of 
treason,  but  no  attainder  of  treason  shall  work  corruption  of  blood, 
or  forfeiture,  except  during  the  life  of  the  person  attainted. 

ARTICLE   IV. 

Section  i.  Full  faith  and  credit  shall  be  given  in  each  State  to 
the  public  acts,  records,  and  judicial  proceedings  of  every  other 
State.  And  the  Congress  may  by  general  laws  prescribe  the  manner 
in  which  such  acts,  records,  and  proceedings  shall  be  proved,  and 
the  effect  thereof. 

Sec.  2.  The  citizens  of  each  State  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  States. 

A  person  charged  in  any  State  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another  State,  shall,  on 
demand  of  the  executive  authority  of  the  State  from  which  he  fled, 
be  delivered  up,  to  be  removed  to  the  State  having  jurisdiction  of 
the  crime. 

No  person  held  to  service  or  labour  in  one  State,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law  or 
regulation  therein,  be  discharged  from  such  service  or  labour,  but 
shall  be  delivered  up  on  claim  of  the  party  to  whom  such  service  or 
labour  may  be  due. 

Sec.  3.  New  States  may  be  admitted  by  the  Congress  into  this 
Union;  but  no  new  State  shall  be  formed  or  erected  within  the  juris- 


254  SOURCES    OF   THE   CONSTITUTION. 

diction  of  any  other  State;  nor  any  State  be  formed  by  the  junction 
of  two  or  more  States,  or  parts  of  States,  without  the  consent  of  the 
legislatures  of  the  States  concerned,  as  well  as  of  the  Congress. 

The  Congress  shall  have  power  to  dispose  of  and  make  all  need- 
ful rules  and  regulations  respecting  the  territory  or  other  property 
belonging  to  the  United  States;  and  nothing  in  this  Constitution 
shall  be  so  construed  as  to  prejudice  any  claims  of  the  United  States, 
or  of  any  particular  State. 

Sec.  4.  The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government,  and  shall  protect  each  of 
them  against  invasion;  and  on  application  of  the  legislature,  or  of 
the  executive  (when  the  legislature  cannot  be  convened),  against 
domestic  violence. 

ARTICLE  V. 

The  Congress,  whenever  two-thirds  of  both  houses  shall  deem  it 
necessarj',  shall  propose  amendments  to  this  Constitution,  or,  on  the 
application  of  the  legislatures  of  two-thirds  of  the  several  States, 
shall  call  a  convention  for  proposing  amendments,  which,  in  either 
case,  shall  be  valid  to  all  intents  and  purposes,  as  part  of  this  Con- 
stitution, when  ratified  by  the  legislatures  of  three-fourths  of  the 
several  States,  or  by  conventions  in  three-fourths  thereof,  as  the  one 
or  the  other  mode  of  ratification  maybe  proposed  by  the  Congress; 
provided  that  no  amendment  which  may  be  made  prior  to  the 
year  one  thousand  eight  hundred  and  eight  shall  in  any  manner 
affect  the  first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article;  and  that  no  State,  without  its  consent,  shall  be  deprived  of 
its  equal  suffrage  in  the  Senate. 

ARTICLE   VI. 

All  debts  contracted  and  engagements  entered  into,  before  the 
adoption  of  this  Constitution,  shall  be  as  valid  against  the  United 
States  under  this  Constitution  as  under  the  Confederation. 

This  Constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall 
be  made,  under  the  authority  of  the  United  States,  shall  be  the 


APPENDIX.  255 

supreme  law  of  the  land;  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  constitution  or  laws  of  any  State  to 
the  contrary  notwithstanding. 

The  Senators  and  Representatives  before  mentioned,  and  the 
members  of  the  several  State  legislatures,  and  all  executive  and 
judicial  officers,  both  of  the  United  States  and  of  the  several  States, 
shall  be  bound  by  oath  or  affirmation  to  support  this  Constitution; 
but  no  religious  test  shall  ever  be  required  as  a  qualification  to  any 
office  or  public  trust  under  the  United  States. 

ARTICLE  VII. 

The  ratification  of  the  conventions  of  nine  States  shall  be  suffi- 
cient for  the  establishment  of  this  Constitution  between  the  States 
so  ratifying  the  same. 

Done  in  Convention  by  the  unanimous  consent  of  the  States 
present,!  ^he  Seventeenth  day  of  September,  in  the  year  of  our  Lord 
one  thousand  seven  hundred  and  eighty-seven,  and  of  the  Inde- 
pendence of  the  United  States  of  America  the  Twelfth. 

In  Witness  whereof  we  have  hereunto  subscribed  our  names. 

Go  Washington, 
Presidt.  and  Deputy  from   Virginia. 

New  Hampshire  —  John  Langdon,  Nicholas  Oilman.  Massa- 
chusetts—  Nathaniel  Gorham,  Rufus  King.  Co7inecticut  —  Wm. 
Saml.  Johnson,  Roger  Sherman.  N'ew  York — Alexander  Hamil- 
ton. N'e-w  yersey  —  Wil.  Livingston,  Wm.  Patterson,  David 
Brearley,  Jona.  Dayton.  Pennsylvania  —  B.  Franklin,  Thos. 
Fitzsimons,  Thomas  Mifflin,  Jared  Ingersoll,  Robt.  Morris,  James 

1  Rhode  Island  was  not  represented.  Several  of  the  delegates  had 
left  the  Convention  before  it  concluded  its  labours,  and  some  others  who 
remained  refused  to  sign.  In  all,  65  delegates  had  been  appointed, 
55  attended,  39  signed. 

The  first  ratification  was  that  of  Delaware,  Dec.  7,  1787 ;  the  ninth 
(bringing  the  Constitution  into  force)  that  of  New  Hampshire,  June  21, 
1788  ;  the  last,  that  of  Rhode  Island,  May  29,  1790. 


256  SOUJiCES   OF  THE    CONSTITUTION: 

Wilson,  Geo.  Clymer,  Gouv.  Morris.  Delaware  —  Geo.  Read, 
Richard  Bassett,  Gunning  Bedford,  Jun.,  Jaco.  Broom,  John  Dick- 
inson. Alaryland — James  M'Henry,  Danl.  Carroll,  Dan.  Jenifer, 
of  St.  Thomas.  Virginia — John  Blair,  James  Madison,  Jun. 
N'orth  Carolina  —  Wm.  Blount,  Hugh  Williamson,  Rich'd  Dobbs 
Speight.  Sojilh  Carolina  —  J.  Rutledge,  Charles  Pinckney,  Charles 
Cotesvvorth  Pinckney,  Pierce  Butler.  Georgia  —  William  Few, 
Abr.  Baldwin. 

Attest :  William  Jackson,  Secretary. 

Articles  in  addition  to,  and  amejtdinent  of,  the  Cojtstitution  of  the 
United  States  of  America,  proposed  by  Congress,  and  ratified 
by  the  legislatures  of  the  several  States,  pursuant  to  the  fifth 
Article  of  the  original  Constitzttion. 

ARTICLE   I.i 

Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech,  or  of  the  press;  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  Gpvernment  for  a  redress 
of  grievances. 

ARTICLE   II. 

A  well-regulated  militia  being  necessary  to  the  security  of  a  free 
State,  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be 
infringed. 

ARTICLE    III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house, 
without  the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 

ARTICLE   IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures,  shall 

1  Amendments  I.-X.  inclusive  were  proposed  by  Congress  to  the 
Legislatures  of  the  States,  Sept.  25,  1789,  and  ratified  1789-91. 


APPENDIX.  257 

not  be  violated,  and  no  warrants  shall  issue,  but  upon  probable 
cause,  supported  by  oath  or  affirmation,  and  particularly  describing 
the  place  to  be  searched,  and  the  person  or  things  to  be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  public  danger;  nor 
shall  any  person  be  subject  for  the  same  offence  to  be  twice  put  in 
jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself,  nor  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law;  nor  shall  private  property 
be  taken  for  public  use,  without  just  compensation. 

ARTICLE   VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and  dis- 
trict wherein  the  crime  shall  have  been  committed,  which  district 
shall  have  been  previously  ascertained  by  law,  and  to  be  informed 
of  the  nature  and  cause  of  the  accusation;  to  be  confronted  with 
the  witnesses  against  him;  to  have  compulsory  process  for  obtain- 
ing witnesses  in  his  favour,  and  to  have  the  assistance  of  counsel 
for  his  defence. 

ARTICLE   VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law. 

ARTICLE   VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted. 


258  SOURCES   OF  THE    CONSTITUTION. 


ARTICLE  IX. 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not 
be  construed  to  deny  or  disparage  others  retained  by  the  people. 

ARTICLE   X. 

The  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people. 

ARTICLE  XI.i 

The  judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  State,  or  by 
citizens  or  subjects  of  any  foreign  State. 

ARTICLE   XII.2 

The  electors  shall  meet  in  their  respective  States,  and  vote  by 
ballot  for  President  and  Vice-President,  one  of  whom,  at  least,  shall 
not  be  an  inhabitant  of  the  same  State  with  themselves;  they  shall 
name  in  their  ballots  the  person  voted  for  as  President,  and  in  dis- 
tinct ballots  the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all 
persons  voted  for  as  Vice-President,  and  of  the  number  of  votes  for 
each,  which  lists  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  seat  of  the  Government  of  the  United  States,  directed  to  the 
President  of  the  Senate;  — the  President  of  the  Senate  shall,  in 
the  presence  of  the  Senate  and  House  of  Representatives,  open  all 
the  certificates,  and  the  votes  shall  then  be  counted;  — the  person 

1  Amendt.  XL  was  proposed  by  Congress  Sept.  5,  1794,  and  declared 
to  have  been  ratified  by  the  legislatures  of  the  three-fourths  of  the 
States,  Jan.  8,  1798. 

2  Amendt.  XII.  was  proposed  by  Congress  Dec.  12, 1803,  and  declared 
to  have  been  ratified  Sept.  25,  1804. 


APPENDIX.  259 

having  the  greatest  number  of  votes  for  President  shall  be  the 
President,  if  such  number  be  a  majority  of  the  whole  number  of 
electors  appointed;  and  if  no  person  have  such  majority,  then  from 
the  persons  having  the  highest  numbers  not  exceeding  three  on  the 
list  of  those  voted  for  as  President,  the  House  of  Representatives 
shall  choose  immediately,  by  ballot,  the  President.  But  in  choos- 
ing the  President,  the  votes  shall  be  taken  by  States,  the  repre- 
sentation from  each  State  having  one  vote;  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two-thirds  of 
the  States,  and  a  majority  of  all  the  States  shall  be  necessary  to  a 
choice.  And  if  the  House  of  Representatives  shall  not  choose  a 
President  whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  fourth  day  of  March  next  following,  then  the  Vice- 
President  shall  act  as  President,  as  in  the  case  of  the  death  or  other 
constitutional  disability  of  the  President. 

The  person  having  the  greatest  number  of  votes  as  Vice-President 
shall  be  the  Vice-President,  if  such  number  be  a  majority  of  the 
whole  number  of  electors  appointed,  and  if  no  person  have  a  major- 
ity, then  from  the  two  highest  numbers  on  the  list  the  Senate  shall 
choose  the  Vice-President;  a  quorum  for  the  purpose  shall  consist 
of  two-thirds  of  the  whole  number  of  Senators,  and  a  majority  of 
the  whole  number  shall  be  necessary  to  a  choice.  But  no  person 
constitutionally  ineligible  to  the  office  of  President  shall  be  eligible 
to  that  of  Vice-President  of  the  United  States. 

ARTICLE   XHI.i 

Section  i.  Neither  slavery  nor  involuntary  servitude,  except  as 
a  punishment  for  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place  subject 
to  their-jurisdiction. 

Sec.  2.  Congress  shall  have  power  to  enforce  this  article  by  ap- 
propriate legislation. 

1  Amendt.  XIII.  was  proposed  by  Congress  Feb.  i.  1865,  and  de- 
clared to  have  been  ratified  by  27  of  the  36  States,  Dec.  18,  1865. 


260  SOUKCES    OF  THE    CONSTITUTION. 


ARTICLE   XIV.i 

Section  i.  All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.  No  State  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States;  nor  shall  any  State  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws. 

Sec.  2.  Representatives  shall  be  apportioned  among  the  several 
States  according  to  their  respective  numbers,  counting  the  whole 
number  of  persons  in  each  State,  excluding  Indians  not  taxed. 
But  when  the  right  to  vote  at  any  election  for  the  choice  of  electors 
for  President  and  Vice-President  of  the  United  States,  Representa- 
tives in  Congress,  the  executive  and  judicial  officers  of  the  State,  or 
the  members  of  the  legislature  thereof,  is  denied  to  any  of  the  male 
inhabitants  of  such  State,  being  twenty-one  years  of  age,  and  citi- 
zens of  the  United  States,  or  in  any  way  abridged,  except  for  par- 
ticipation in  rebellion  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the  number  of 
such  male  citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  State. 

Sec.  3.  No  person  shall  be  a  Senator  or  Representative  in  Con- 
gress, or  elector  of  President  and  Vice-President,  or  hold  any  office, 
civil  or  military,  under  the  United  States,  or  under  any  State,  who, 
having  previously  taken  an  oath,  as  a  member  of  the  Congress,  or 
as  an  officer  of  the  United  States,  or  as  a  member  of  any  State  leg- 
islature, or  as  an  executive  or  judicial  officer  of  any  State,  to  sup- 
port the  Constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given  aid  or  comfort 
to  the  enemies  thereof.  But  Congress  may,  by  a  vote  of  two-thirds 
of  each  House,  remove  such  disability. 

1  Amendt.  XIV.  was  proposed  by  Congress  June  16,  1866,  and  de- 
clared to  have  been  ratified  by  30  of  the  36  States,  July  28,  1868. 


APPENDIX.  261 

Sec.  4.  The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of  pensions 
and  bounties  for  services  in  suppressing  insurrection  or  rebellion, 
shall  not  be  questioned.  But  neither  the  United  States  nor  any 
State  shall  assume  or  pay  any  debt  or  obligation  incurred  in  aid  of 
insurrection  or  rebellion  against  the  United  States,  or  any  claim  for 
the  loss  or  emancipation  of  any  slave;  but  all  such  debts,  obliga- 
tions, and  claims  shall  be  held  illegal  and  void. 

Sec.  5.  The  Congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article. 

ARTICLE   XV.i 

Section*  i.  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or  by  any 
State  on  account  of  race,  colour,  or  pre\"iou3  condition  of  ser\"itude. 

Sec.  2.  The  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

1  Amendt.  XV.  was  proposed  by  Congress  Feb.  26, 1869,  and  declared 
to  have  been  ratified  by  29  of  the  37  States,  March  30,  1870. 


INDEX 


INDEX. 


Abbots,  their  membership  in  Par- 
liament, 67. 

Act,  Licensing,  220,  ib.  n.  3. 

Act  of  Settlement,  99,  108,  109,  127 
n.  I,  194,  196. 

Act,  Test,  215  n.  4. 

Act  of  Toleration,  214. 

Adams,  John,  cited,  9,  31. 

Alfonso  v.,  Kingof  Aragon,i94n.  i. 

Alfred  the  Great,  8  n.,  87. 

Amendments,  to  the  Constitution 
of  the  United  States,  213,  ib.  n.  2, 
214,  219,  221,  222,  224,  226,  228, 
229,  233. 

America,  i,  8,  7  n.,  8,  27  n.  2,  36, 
n.,  41,  42,  43  n.  I,  74  n.  i,  78 
n.  I,  115,  150,  151,  196,  201  n.  I, 
205  n.  I,  206,  216  n.  2,  232  n.  2. 

American  Bar,  184,  202. 

Andros,  Sir  E.,  17. 

Anglican  Church,  11  n.  2,  69,  73, 
88,  ib.  n.  i.  123,  124,  127,  135,  216. 

Anglo-Saxon,  superseded  other 
races  in  England,  6  n. ;  race,  7 
n. ;  freedom,  8  n. ;  invasion  of 
England,  62 ;  kingship,  129 ;  in- 
stitutions, 233  n.  2. 

Anne,  Queen,  22,  92,  97,  109,  145, 
151,  157,  ib.  n.  2,  214,  232. 

Antwerp,  78  n.  i. 

Appropriation  by  Parliament,  iii. 

Aragon,  194  n.  i. 

Archdeacons,  73. 


Areopagitica,  The,  of  Milton,  220. 
Aristotle,  philosophy  of,  i,  ib.  n.  i. 
Arms,  Assize  of,  223. 
Arms,  right  to  bear,  223,  ib.  n.  i, 

ib.  n.  4,  224,  ib.  n.  i. 
Arnold,  Sir  Edwin,  cited,  7  n. 
Arrest,  freedom  from,  103,  104,  ib. 

n.  4,  105,  106. 
Assize  of  Arms,  223. 
Assize  of  Clarendon,  235. 
Athabasca,  8  n. 
Athelstan,  King,  126. 
Attainder,  bills  of,  96,  ib.  n.  i,  211, 

ib.  n.  2. 
Audit  by  Parliament,  iii. 
Aukland,  8  n. 
Australia,  204. 
Austria,  45  n. 

Bacon,  Lord,  97  n.  i,  99  n.  3. 
Bagehot,  Walter,  cited,  172. 
Bail  for  prisoners,  229,  233. 
Ballarat,  8  n. 

Baltimore,  Lord,  17,  200,  216  n.  2. 
Baptists,  216. 
Bar,  American,  184,  202. 
Barons,  the  English,  67,  74,  76. 
Barons'  War,  71,  90,  131. 
Bentham,  201  n.  i. 
Berkeley,  Lord,  21. 
Berkeley,  Sir  William,  13. 
Bicameral  System,  74,  ib.  n.  i,  83, 
84  n.  I.    See  Two  Houses. 


265 


266 


INDEX. 


Bill  of  Rights,  English,  9,  104,  137, 
207,  222-225,  232,  233 ;  Virginia, 
13;  Massachusetts,  15;  Con- 
necticut, 17;  Maryland,  18; 
New  York,  20  n.  2;  Pennsyl- 
vania, 22  n.  2;  American,  42,  211, 
213,  224  n.  I.  sq. 

Bills,  93,  94,  ib.  n.  i,  ib.  n.  2,  95, 
156  ib.  n.  2,  158  n.  2. 

Bills  of  Attainder,  96,  ib.  n.  i,  211, 
ib.  n.  2. 

Bishops,  in  Witenagemot,  67, 86-88  ; 
in  Great  Council,  67 ;  in  House 
of  Lords,  68,  69 ;  in  Privy  Coun- 
cil, 76. 

Blackstone,  Sir  William,  48,  154- 
156, 164,  196  n.  I,  200,  201 ;  cited, 
48,  238. 

Britain,  60  n.  2,  61,  62,  121,  123, 
124  n.  I. 

Britain,  Great,  5,  9,  27,  29,  30,  31, 
ib.  n.  4,  32,  36  n.,  38,  42,  43,  ib.  n.  i, 
52,  54,  loi  n.  I,  123,  166,  171,  173, 
17s,  196  n.  I. 

Bryce,  James,  cited,  25,  41,  55  n.  i, 
146,  154,  158,  177,  202. 

Buckingham,  George  Villers,  Duke 
of,  97  n.  I. 

Burgesses,  72,  73,  74  n.  3. 

Bute,  Lord,  141. 

Butler,  Pierce,  45  n. 

Cabinet,  rise  of  the  English,  92, 
138,  ib.  n.  I ;  relation  to  the  Privy 
Council,  ■]'],  138  ;  power,  138-140 ; 
relation  to  Parliament,  139-141 ; 
relation  to  the  crown,  138-141, 
171,  172,  176,  206;  unknown  in 
the  American  colonies,  151 ;  re- 
lation of  the  American,  to  the 
President,  158,  166-168,  170-172, 
176. 

Calvert,  Charles,  Lord  Baltimore, 

7- 
Cambridge,  219  n.  3. 


Campbell,  Douglas,  his  assertion 
that  Americans  are  not  of  Eng- 
lish race,  4  n.  1 ;  answer  to  claims 
of  his  followers  as  to  Dutch  origin 
of  American  institutions,  19  n.  2; 
answer  to  claims  of  Dutch  influ- 
ence in  New  York,  20  n.  2 ;  in 
Pennsylvania,  23  n.  i ;  his  claim 
of  Dutch  elements  in  the  Ameri- 
can Confederation,  40,  ib.  n.  i ; 
his  claim  of  Dutch  influence  in 
the  Philadelphia  Convention,  43, 
149 ;  in  election  of  senators,  78 
n.  I ;  his  general  claims  in  favour 
of  Dutch  as  against  English 
derivation  of  the  American  Con- 
stitution, 205  n.  I ;  his  claim  that 
religious  liberty  as  provided  in 
the  American  Constitution  is  of 
Dutch  origin,  216  n.  2,  217  n. 
2 ;  on  freedom  of  the  press,  221 
n.  2. 

Canada,  30,  204. 

Canterbury,  73,  124,  219  n.  3 ; 
Archbishop  Baldwin,  of  171  n.  i. 

Canute,  King,  104,  122  n.  2. 

Cape  Town,  8  n. 

Carolina,  granted  by  Charles  IL, 
23 ;  its  government,  23 ;  Locke's 
plan  regarding,  23,  ib.  n.  2,  24 ; 
divided  into  North  and  South 
Carolina,  24. 

Carolina,  North,  division  from 
South  Carolina,  24;  State  con- 
stitution, 37,  78,  187 ;  bill  of 
rights,  209,  218. 

Carolina,  South,  division  from 
North  Carolina,  24;  State  con- 
stitution, 37,  78,  80,  97,  152  n.  I, 
160  n.  3,  187;  governor  of,  150 
n.  I. 

Cases,  197. 

Cenred,  86. 

Cerdic,  121  n.  2,  ib.  n.  4,  227  n.  i. 

Chancellor,  the,  182,  ib.  n.  i. 


INDEX. 


267 


Charles  I.,  13,  17,  19,  50,  92,  104, 
"4.  135.  151.  207,  223,  225. 

Charles  II.,  17,  23,  50,  92,  99,  in, 
135, 138, 151,  220,  ib.  n.  I,  222,  225. 

Charters,  royal,  9,  27  ;  coinmercial, 
9  n.  I,  26;  of  Virginia,  10,  12; 
Massachusetts,  13,  14;  New 
Hampshire,  15  ;  Connecticut,  16, 
ib.  n.  2,  17;  Rhode  Island,  17; 
Maryland  patent,  17 ;  New  York, 

19,  20 ;  Pennsylvania,  22,  ib.  n. 
2;  Georgia,  24. 

Chatham,  Lord,  36  n. 

Chief  Justice  of  the  U.  S.  98,  165. 

Choiseul,  30  n.  i. 

Church,  the,  11  n.  2,  69,  73,  88,  ib. 
n.  I,  123,  124,  127,  135,  216. 

Clarendon,  Assize  of,  235. 

Clarendon,  Constitutions  of,  235. 

Clarendon,  Lord,  23,  73  n.  2,  97 
n.  I. 

Coke,  Sir  Edward,  194,  231. 

Colonies,  American,  follow  model 
of  English  institutions,  7,  24-26, 
31  n.  I,  151;  settled  by  English- 
men, 4, 9 ;  by  other  races,  4  n.  i ; 
by  Dutch,  5  n.  i,  i4n.  i,  18, 19  n.  i, 
22 ;  Scotch,  4  n.  I ;  Scotch-Irish,  4 
n.  I ;  French,  4  n.  i,  5  n.  i ;  Ger- 
mans, 4  n.  I,  5  n.  I ;  Welsh,  4  n. 
I ;  Spaniards,  5  n.  i ;  Irish,  4  n. 
I,  5  n.  I ;  Swedes,  4  n.  i,  5  n.  i ; 
separated  from  England,  29, 30,  ib. 
n.  I,  35,  ib.  n.  i,  36, 37  ;  attempted 
union  of,  152  n.  i ;  no  nobility  in, 
77 ;  political  usages  of,  93. 

Columbia,  District  of,  188. 

Comitatus,  the,  124,  ib.  n.  i. 

Common  Law  in  Virginia,  13 ; 
Massachusetts,    15 ;    New  York, 

20,  ib.  n.  2;  Georgia,  24  n.  2;  in 
England,  199,  207  n.  i,  210,  220 
n.  3,  230,  231 ;  in  America,  37, 
ib.  n.  I,  189,  190,  199,  207,  ib.  n.  i, 
208,  210,  229,  ib.  n.  I,  230. 


Commons,  House  of,  model  for 
American  legislatures,  26, 43,  86 ; 
rise  of,  69,  72,  83 ;  relation  of 
Simon  De  Montfort  to,  71,  72, 
136;  membership  of,  74,  ib.  n.  3, 
132  n.  I ;  powers,  90-92,  97,  132, 
137 ;  act  of  attainder  by,  96,  97 ; 
power  of  impeachment,  96-100; 
right  to  initiate  money  bills,  100,' 
loi  n.  I,  III ;  right  of  audit  of 
public  accounts,  iir;  freedom 
of  speech,  103, 104 ;  freedom  from 
arrest,  103,  104 ;  ancient  right  to 
decide  contested  membership, 
103, 106 ;  membership  contrasted 
with  that  of  the  House  of  Repre- 
sentatives, 206. 

Concilium,  Magnum,  67,  180.  See 
Great  Council. 

Concilium  Ordinarium,  76,  180  n. 
2,  183  n.  I.     See  Privy  Council. 

Confederation,  Articles  of,  39 ; 
nature  of,  39,  40 ;  unsatisfactory, 
39-41.  S3,  84,  200  n.  3. 

Confirmatio  Ckartarutn,  113. 

Congress,  Continental,  35,  38  n.  i ; 
of  Confederation,  40,  84;  Ameri- 
can, 60,  79,  93 ;  powers,  80,  93, 
no  n.  2,  115,  ib.  n.  2,  173; 
procedure,  93, 95  n.  i ;  privileges, 
96,  102  n.  I,  103;  freedom  of 
arrest  for  members,  104,  105 ; 
secrecy  of  proceedings,  108  ;  right 
of  appropriation,  112,  115  n.  2; 
of  audit,  112;  power  of  taxation, 
115;  relation  to  the  President, 
156-159,  167  n.  2,  171,  173.  See 
Senate  and  House  of  Represen- 
tatives. 

Connecticut,  charter,  17 ;  early 
written  constitution,  16  n.  2; 
State  constitution,  17,  38,  205  n. 
I ;  bill  of  rights,  17,  208,  ib.  n.  i. 

Conquest,  Norman,  67,  127,  129, 
178,  223,  234. 


268 


INDEX. 


Constitutional  Amendments.  See 
Amendments  to  the  Constitu- 
tion. 

Constitutional  Convention  at  Phila- 
delphia, 40-57,  77-84,  loi  n.  I, 
144,  147-160,  166,  177,  184,  186- 
195,  202  n.  3,  213-217. 

Constitution,  American,  its  sources, 
4 ;  a  document,  4  n.  i ;  Dutch 
elements  not  in,  4  n.  i. 

Constitution,  English,  i,  26,  31,  ib. 
n.  I,  38  n.  I,  43  n.  i,  47-51,  53, 
54  n.  I,  56  n.  2,  57,  72  n.  2,  73  n. 

3,  83,  101  n.  I,  135,  136,  172,  184, 
210,  239. 

Constitution  of  the  Netherlands, 
16  n.  2. 

Constitution  of  the  States,  13,  37- 
39.  49.  SO.  57  n.  2,  77,  78,  ib.  n.  i, 
207  n.  I,  238;   of  Virginia,  11  n. 

4,  13 ;  Connecticut,  16  n.  2,  17 ; 
Rhode  Island,  17;  Pennsylvania, 
77 ;  Vermont,  77 ;  Maryland, 
78;  Massachusetts,  78;  New 
York,  78  ;  North  Carolina,  78  ; 
South  Carolina,  78. 

Constitution  of  the  United  States, 
4,  ib.  n.  I,  41,  42,  50-57,  78  n.  i, 
81  n.  I,  93-110,  115,  ib.  n.  2,  117, 
143.  147-176.  184-239. 

Constitutions  of  Clarendon,  235. 

Contested  membership,  103,  106. 

Convocation,  relation  to  taxation, 
73 ;  of  Canterbury,  73 ;  of  York, 

73- 

Cooley,  Thomas  M.,  cited,  171, 
202,  224. 

Cornwall,  Earl  of,  71. 

Cortes,  194  n.  i. 

Council,  colonial,  10-15,  23,  26. 

Council,  Ordinary,  76.  See  Privy 
Council. 

Council,  Privy,  origin,  76;  mem- 
bership, 76 ;  relation  to  Parlia- 
ment, 76;  powers,  76,  90;  colo- 


nial relation,  27,  29  ;  model  of  the 
U.  S.  Senate,  77-79 ;  attempt  in 
the  Philadelphia  Convention  to 
create  one,  78 ;  relation  to  the 
king,  138 ;  the  Senate  as  a,  160- 
167;  judicial  powers,  27,  29,  183- 
191,  200. 

Court  of  King's  Bench,  179,  180 
n.  2,  182 ;  E.xchequer,  182 ;  Com- 
mon Pleas,  182;  Chancery,  182; 
Star  Chamber,  183  n.  i,  220;  of 
Claims,  188.  See  Supreme  Court. 

Court,  Supreme.  See  Supreme 
Court. 

Crane  and  Moses,  cited,  12,  24. 

Criminal  trial,  202,  228-233. 

Cromwell,  Oliver,  8  n.,  50. 

Cumberland,  8  n. 

Cyning,  119,  ib.  n.  2,  160.  See 
King. 

Cynric,  123  n.  i,  ib.  n.  4. 

Dakota,  7  n. 

Danby,  Thomas  Osborne,  Earl  of, 

99- 

David  of  Wales,  97. 

Debate,  secrecy  of,  107,  108. 

Declaration  of  Independence,  37, 
39.  54  n-  2,  115,  225,  237. 

Declaration  of  Rights,  222. 

Delaware,  settlement,  22;  united 
with  Pennsylvania,  22;  legisla- 
ture of,  23;  State  constitution, 
37,  78  n.  I,  97;  governor  of,  150 
n.  I,  187. 

Deputy  governor,  office  of,  81. 

Dering,  Sir  Edward,  107  n.  2. 

De  Toqueville,  189  n.  i. 

Dickinson,  John,  79  n.  i,  187 
n.  2. 

Dorset,  8  n. 

Dutch  race  in  America,  4  n.  i ;  in- 
fluence on  American  institutions, 
5  n.  I,  4  n.  I,  19  n.  2;  in  New 
York,  18, 19  n.  i,  ib.  n.  2,  20  n.  2; 


INDEX. 


269 


in  Pennsylvania,  23  n.  i ;  in  New- 
Jersey,  18. 
Dutch  West  India  Co.,  20  n.  2. 

EadgAr,  66  n.  i,  87. 

Earldorman,  67,  86-88,  121,  ib.  n.  2, 
124,  126  n. 

Earls,  67,  69. 

East  Anglia,  63  n.  i. 

Edmund,  87. 

Edward  the  Confessor,  88,  89  n.  i, 
104  n.  4,  122  n.  2. 

Edward  I.,  72,  ib.  n.  2,  90,  105,  113, 
127  n.  I,  131,  179,  223. 

Edward  II.,  91,  105,  no  n.  2,  127  n. 
I,  179. 

Edward  III.,  91,  96,  no  n.  i,  114  n., 
202,  203,  236. 

Edward  IV.,  127  n.  i,  179. 

Edward  VI.,  135,  231  n.  i. 

Egbert,  67,  88. 

Eleanor,  Queen,  71. 

Election,  69,  70,  ib.  n.  i,  71,  72, 
78  n.  I,  79  n.  I,  88,  103,  106,  109, 
119,  lb.  n.  I,  120,  127,  ib.  n.  i, 
129,  152  n.  I,  194. 

Electors,  American,  152,  n.  i;  Ger- 
man imperial,  152  n.  i. 

Eliot,  Sir  John,  104. 

Elizabeth,  Queen,  9,  91,  106,  135. 

Emancipation  Proclamation  of 
President  Lincoln,  164  n.  i. 

Empire,  British,  5,  6,  9. 

Empire,  Holy  Roman,  152  n.  i. 

England,  5-7,  10-15,  18-20,  26,  28, 
30  n.  2,  31,  32,  36  n.,  42,  43,  44, 
47.  S3.  55  n-  i.  S6  n.  2,  60  n.  2, 
62,  70  n.  2,  72-77,  81  n.  I,  83,  86, 
92,  96,  99,  104,  107,  no  n.  2, 
115  n.  2,  117,  122  n.  I,  ib.  n.  2, 
123,  142,  144  n.  3,  147,  ib.  n.  2, 
149-151,  157  n.  2,  158,  176,  180, 
184  n.  I,  185-190,  192,  194  n.  I, 
196  n.  I,  198,  201,  202,  205  n. 
I,  207,   216,    lb.   n.   2,   222,  223, 


227,  229  n.  I,  233,  ib.  n.  2,  234, 
238. 

England,  New.    See  New  England. 

Equity,  198,  ib.  n.  i,  199. 

Ercenwold,  87. 

Essex,  63  n.  i. 

Ethelbert,  King,  87,  104. 

Ethelred  II.,  King,  235. 

Executive,  117,  118,  120,  144,  149 
n.  I,  171 ;  colonial,  12,  13,  14,  tb. 
n.  I,  15,  17,  20,  149  n.  I ;  English, 
117-120,  144,  149  n.  I,  171.  See 
King,  Governor,  President. 

Ex-post  facto  laws,  211,  ib.  n.  2. 

Faulkland  Islands,  8  n. 
Federalist,  The,  174 ;  cited,  47,  52, 

185,  186. 

Fitz  Walter,  136. 

Folkmoot,  origin,  60-63  '•  continu- 
ance, 65,  181 ;  membership,  70. 

Fort  Garry,  8  n. 

Fox,  Charles  James,  cited,  143 
n.  2. 

France,  81  n.   i,  83,  135  n.   i,  158, 

186,  233  n.  2,  234. 

Franklin,  Benjamin,  36  n.,  54  n.  2, 

78  n.  I,  154  n.   I,  174  n.  i,  221 

n.  2. 
Freedom  from  arrest  for  members 

of  Parliament  and  of  Congress, 

103-106. 
Freedom  of  the  press,  219,  221. 
Freedom  of  speech,  103,  104. 
Freeman,  Edward  A.,  cited,  68,  83. 
Frothingham,  Richard,  cited,  30. 

Gallatin,  Albert,  167  n.  2. 

Gascony,  71. 

Gaul,  60  n.  2. 

George  I.,  97  n.   i,  138,  142  n.  1, 

146. 
George  II.,  24. 
George  III.,  32,  92,  97  n.   i,   115, 

117,  140-143.  145-147.  151.  156  n- 


270 


INDEX. 


I,  157,  170,  172,  175.  176, 194  n.  I, 
195,  215,  221,  225,  226. 

Georgia,  charter,  24;  government, 
24;  State  constitution,  37,  152 
n.  I,  187;  bill  of  rights,  208  n.  i, 
218. 

Germany,  36  n.,  60  n.  2,  61,  134 
n.  I,  216,  233  n.  2. 

Gibson,  Bishop,  73  n.  2. 

Gloucestershire,  64  n.  i. 

Governor,  royal  relations  of  the, 
26-29, 4^.  ^17  ;  colonial,  26, 149  n. 
I,  150-152 ;  State,  151  n.  i,  152  n. 
I ;  relation  to  council,  97,  152 
n.  1 ;  powers,  152,  158 ;  title,  150 
n.  i;  of  Virginia,  12,  13;  Massa- 
chusetts, 13,  14,  ib.  n.  I ;  New 
York,  20 ;  Pennsylvania,  23 ; 
Carolina,  24. 

Grant,  U.  S.,  President,  174  n.  i. 

Great  Britain,  5,  9,  27-32,  36  n., 
42,  43,  ib.  n.  I,  52,  54,  loi  n.  i, 
123,  i56,  171,  173,  175,  196  n.  I. 

Green,  John  Richard,  cited,  26, 
215. 

Grotius,  I,  45  n. 

Habeas  Corpus,  161  n.  i,  211. 
Hague,  the,  194  n.  i. 
Hallam,  Henry,  cited,  71. 
Hamilton,  Alexander,  46  n.,  41  n.  i, 

53.  54. 157  n.  1, 174.  176.  194  n-  i- 

Hampshire,  123. 

Hampshire,  New,  charter,  15  ;  early 
government,  15 ;  State  constitu- 
tion, 38,  78,  80,  97,  loi,  152  n.  I ; 
governor,  150  n.  i ;  case  involv- 
ing New  York  referred  to  Eng- 
lish Privy  Council,  200. 

Hanover,  House  of,  50,  92,  127  n. 
I,  138,  139,  ib.  n.  I,  142  n.  i,  145- 
147,  151,  156  n.  2,  214,  237. 

Hanover,  Sophia  of,  127  n.  i. 

Hardwicke,  Lord,  200. 

Hare,  J.  I.  C,  cited,  51. 


Hartford,  16. 

Hastings,  Warren,  97. 

Hayes,   Rutherford   B.,  President, 

158  n.  I,  167  n.  2. 
Hedde,  87. 
Hengest,  121  n.  3. 
Henry  I.,  112,  129,  i^o,  ib.  n.  i,  178, 

ib.  n.  I,  179,  ib.  n.  i. 
Henry  11.,  67,  89,  130,  180  n.  2,  181 

n.  I. 
Henry  HI.,  70,  71,  76,  90,  130,  178, 

ib.  n.  I,  179,  182,  ib.  n.,  223,  234. 
Henry  IV.,  97,  100,  103,  in,  114  n. 

I,  127  n.  I. 
Henry  V.,  94. 

Henry  VII.,  127  n.  i,  134  n.  i. 
Henry  VIII.,  91,  103,  135. 
Heretoga,  title  of,  121,  /b.  n.  3. 
Hobbes,  Thomas,  i,  ib.  n.  i. 
Holland,  19,  ib.  n.  2,  20  n.  2,  40,  41, 

43  n.  I,  78  n.  I,  149,  194  n.  i,  216 

n.  2,  220  n.  I,  221  n.  2. 
Homer,  37. 
Horsa,  121  n.  3. 

Houses,  two.     See  Two  Houses. 
Hundred,  the,  62,  70. 
Hyde,  Edward,  Earl  of  Clarendon, 

97  n.  I. 

Independence,  Declaration  of,  37, 

39,  54  n.  2,  115,  225,  237. 
Ini,  86. 

Instinct,  theor}-  of,  2  n.  i. 
Ireland,  123. 
Italy,  60  n.  2. 

Jackson,   Andrew,    President,    147 

n.  2. 
James  I.,  9,  10,  92,  99  n.  3,  106,  127 

n.  I,  13s,  151,  179,  208  n.  I,  223, 

231. 
James  II.,  14,  20,  50,  92,  135,  137, 

181,  217,  224,  225. 
Jamestown,  Va.,  11,  ib.  n.  i,  11  n.  2. 
Jay,  John,  53,  54. 


INDEX. 


in 


Jefferson,  Thomas,  President,  147 

n.  2,  158,  167  n.  2. 
John,  King,  70,  71,  89, 113, 122  n.  i, 

ib.  n.  2,  130,  ib.  n.  i,  207. 
Johnson,  Professor,  cited,  38,  56. 
Judiciary,  American   colonial,   12, 

13, 15,  22,  29, 184, 187, 191 ;  State, 

184  n.  I,  187,  lb.  n.  2,  188,  189,  ib. 

n.  I,  190,  191,  192  n.  I ;  national, 

184,  ib.  n.  I,  185,  187,  188,  189,  ib. 

n.    I,    190;    English,   9,    29,  76, 

87-90,  125, 126,  132,  164,  178-184,  I 

190,  200.  ' 

Judges,  duration   of  appointment, 

193-196. 
Jurisprudence,  12-15,  20,  22  n.  2, 

24  n.  2,  29,  37,  ib.  n.  i,  43  n.  i,  I 

190,  192,  197,  198,  ib.  n.  I,  200, 

201,  ib.  n.  I,  228-233. 
Justice  Chief,  of  the  U.  S.  Supreme 

Court,  98,  165. 
Justices  of  the  Supreme  Court  of 

the  U.  S.,  165,  193. 
Jury,  trial  by,  9,   13,  17,  202,  208, 

228,  229,  233-238. 

I 
Kansas,  7  n. 

Kent,  Chancellor,  cited,  37,  104, 
207. 

Kent,  County  of,  63  n.  i,  86. 

King,  relation  to  the  government 
of  the  colonies,  10-13,  15,  22,  24, 
26,  27,  ib.  n.  2,  39,  151 ;  a  model 
for  the  American  executive  office, 
43.  148-158,  173.  175-177;  rela- 
tion to  the  Witenagemot,  63-67, 
88,  ib.  n.  i,  89;  relation  to  the 
Great  Council,  67 ;  relation  to 
the  membership  of  Parliament, 
71-73 ;  the  kingship  elective,  69, 
90,  1 18-120,  127,  ib.  n.  I,  129; 
relation  to  the  Privy  Council,  76; 
to  the  judiciary,  86,  87,  126,  164, 
ib.  n.  I,  17S,  179;  deposition  of 
the,  88,  91,  98,  127,  137 ;  powers  • 


of  the,  91,  92,  126,  129,  132,  133, 
137,  140,  ib.  n.  2.  142-145,  155, 
156,  160,  164  n.  I ;  royal  phi- 
losophy, 92,  127  n.  I,  133,  135, 
137.  ^59 ;  fountain  of  honour, 
127,  160,  164,  ib.  n.  I ;  fountain 
of  justice,  126,  164,  ib.  n.  i,  178, 
180,  194;  pardoning  power,  99, 
164;  origin  of  the  kingship,  117, 
118,  ib.  n.  1,  ib.  n.  2,  120,  ib.  n. 
I,  127;  prerogative  of  the,  117, 
136,  154,  156,  160,  164,  ib.  n.  I  ; 
title  of  the,  119,  ib.  n.  2,  122  n.  i, 
ib.  n.  2,  126,  ib.  n.  i,  127;  devel- 
opment of  the  kingship,  123,  124 
n.  I,  129-136;  relation  to  the 
judiciary,  86,  87,  126,  164,  ib.  n. 
I,  178,  179,  n.  I ;  veto  power, 
156-158 ;  proclamations,  164  n. 
I ;  hereditary  right  of,  119,  120, 
127  n.  I,  133;  tribal,  118-122; 
commander-in-chief,  127,  160 ; 
relation  to  militia,  187 ;  limited 
nature  of  the  office,  127,  131, 
137-139;  coronation  of,  127,  ib. 
n.  i;  territorial  jurisdiction  of, 
127  n.  I,  129,  133 ;  relation  to 
Parliament,  136-142,  144,  146, 
156;  relation  to  the  cabinet, 
138-147 ;  American  idea  of  the 
King,  147,  lb.  n.  2,  160. 

Knights,  67,  71-74. 

Knights  of  the  Shire.   See  Knights. 

Lancaster,  91,  127  n.  i,  132,  135. 
Lancaster,  Henrv  of.     See  Henrv 

IV. 
Lancaster,  House  of,  127  n.  i,  130, 

132,  135- 
Laud,  Archbishop,  97. 
Law,  common,  13,  15,  20,  ib.  n.  2, 

24  n.  2,  37,  ib.  n.  i,  189,  190,  199, 

207,  ib.  n.  I,  208,  210,  220  n.  3, 

229,  ib.  n.  I,  230,  231. 
Law,  English,  5,  20,  ib.  n.  2. 


272 


INDEX. 


Law  of  the  land,  4  n.  i. 

Legislature,  first  one  in  America,  9 
n.  I,  II,  lb.  n.  2,  n.  4;  popular 
movement  of  colonists  to  com- 
plete legislative  organism,  9  n.  i, 
10,  II,  lb.  n.  2,  n.  4,  12-15,  20,  23, 
25  ;  American  limited,  48,  80,  no 
n.  2 ;  colonial  upper  house,  10- 
13,  15,  23,  26 ;  colonial  lower 
house,  11-15,  20,  //'.  n.,  23,  26,  78 
n.  I,  79,  ib.  n.  i. 

Leicestershire,  8  n. 

L Esprit  des  Lois,  46,  185,  186. 

Lewes,  71. 

Lexington,  36. 

Liberty,  religious.  See  Religious 
Liberty. 

Licensing  Act,  220,  ib.  n.  3. 

Lincoln,  Abraham,  President,  8  n., 
161  n.  I,  164,  n.  I,  167  n.  2,  171, 
172. 

Locke,  John,  his  philosophy,  i ;  his 
plan  of  government  for  Carolina, 
23,  ib.  n.  2. 

Lolme  De,  John  Louis,  196  n.  i. 

London,  7  n.,  8  n.,  27,  71,  107  n.  2, 
204,  219,  220  n.  3. 

London,  Bishop  of,  219. 

Lords,  House  of,  a  model  for  gov- 
ernment in  America,  26,  43  ;  de- 
veloped from  the  Witenagemot, 
68,  69  ;  meetings  of,  72 ;  a  model 
for  the  United  States  Senate,  77, 
78  n.  I,  79,  ib.  n.  i ;  presiding 
officer  of,  80  ;  powers  of,  90,  91 ; 
overthrow  of,  92;  judicial  func- 
tions of,  96,  97,  93  n.  3,  180,  183, 
ib.  n.  2 ;  relation  to  money  bills, 
100,  101  n.  I ;  freedom  of  speech 
in,  103 ;  membership,  132,  ib.  n. 
I ;  contrasted  with  the  United 
States  Senate,  206. 

Louis  XIV.,  138  n.  i. 

Louisiana,  purchase  of,  167  n.  2. 

Lovat,  Lord,  97  n.  i. 


Lowell,  James  Russell,  cited,  57. 
Lutherans,  216. 
Lyons,  Lord,  161  n.  i. 

Macaulay,  Lord,  cited,  136. 

Madison,  James,  President,  45  n., 
49  n.  I,  52,  54,  167  n.  2,  186,  187 
n.  2. 

Magna  Charta,  15,  18,  20  n.  2,  54 
n.  2,  56,  90, 113,  130,  ib.  n.  i,  131, 
ib.  n.  I,  181  n.  i,  207,  209,  221 
n.  I,  230,  ib.  n.   i. 

Mahrattas,  King  of,  144  n.  3. 

Maine,  province  of,  208  n.  1. 

Maine,  Sir  Henry,  cited,  51,  52,  82, 
173,  185,  190. 

Mansfield,  Lord,  215,  ib.  n.  3. 

Mary  L,  106,  137,  223. 

Mary  IL,  20,  92,  114,  136,  137,  151, 
157  n.  2,  194,  221. 

Maryland,  patent,  17,  18  n.  i ;  early 
government,  18,  ib.  n.  2;  State 
constitution,  37,  78,  152  n.  i,  187, 
232  n.  2;  bill  of  rights,  115  n.  i, 
208  n.  I,  209 ;  religious  liberty  in, 
216,  lb.  n.  2. 

Mason,  George,  46  n.  i. 

Massachusetts,  charters,  13,  14  ib. 
n.  i;  early  government,  14;  ad- 
dress to  the  Long  Parliament,  15  ; 
its  government  the  model  for  that 
of  Connecticut,  16  n.  i,  17;  its 
copying  after  English  institu- 
tions, 14,  15;  State  constitution, 
37,  78,  80,  97,  loi ;  bill  of  rights, 
115  n.  I,  209,  ib.  n.  i,  218. 

Matilda,  Queen,  178  n.  i. 

Maud,  Queen,  178  n.  i. 

May,  Sir  Erskine,  cited,  26,  146. 

Mayflower,  the,  compact  signed  on, 
16  n.  2. 

Melville,  97. 

Membership  of  Parliament,  con- 
tested, 103,  136. 

Mercia,  63  n.  i. 


INDEX. 


Ill 


Mexico,  i6i  n.  i. 

Militia,  127,  223,  ib.  n.  i,  224,  ib. 

n.  I. 
Miller,  Mr.  Justice,  cited,  42. 
Milton,  John,  220,  ib.  n.  i. 
Mompesson,  Sir  Giles,  97  n.  1. 
Monroe,  James,  President,  149  n. 

2,  167  n.  2. 
Montfort,  Simon   de,  8  n.,  71,  72, 

136. 
Montesquieu,  Baron  de,  46,  47,  48, 

49  n.  I,  185,  186,  196  n.  I,  238. 
Moravians,  216. 
Morris,  Gouverneur,  43  n.  I. 
Morris,  Robert,  54  n.  i. 

Natal,  8  n. 

Netherlands,  the,  16  n.  2,  19,  193  n. 

New  Amsterdam,  19. 

Newburg,  147  n.  2. 

New  England,  13,  20,  22  n.  i,  216, 
ib.  n.  2,  221  n.  2. 

New  Hampshire,  charter,  15 ;  early 
government,  15 ;  State  constitu- 
tion, 38,  78,  80,  97,  loi,  152  n.  I ; 
governor,  150  n.  i ;  case  involv- 
ing New  York  referred  to  Privy 
Council,  200. 

New  Haven,  colony  of,  16. 

New  Jersey,  Dutch  settlement,  18 ; 
granted  by  the  Duke  of  York,  21 ; 
government,  21,  22;  State  con- 
stitution, 37,  232  n.  2. 

New  York,  settlement  by  the 
Dutch,  18,  19  n.  2;  by  the  Eng- 
lish, 18;  charters,  19;  theory  of 
Dutch  derivation,  19  n.  2,  20  n. 
2 ;  government  under  the  Duke 
of  York,  19,  20 ;  colonial  govern- 
ment, 20,  ib.  n.  2 ;  State  consti- 
tution, 78,  ib.  n.  I,  97,  152  n.  I, 
157  n.  I,  160  n.  3,  217  n.  2;  bill 
of  rights,  208,  210,  216  n.  2.  221 
n.  2. 

New  Zealand,  8  n. 


Nichol,  Governor,  217. 
Nicola,  Colonel,  147  n,  2. 
Nobility,   23,    29,   75   n.,  tj  n.    i, 
83,  124,  ib.  n.  I,  125,  130,  ib.  n.  i, 

131- 

Norfolk,  179  n.  i. 

Norman  Conquest,  67,  127,  129, 
178,  223,  234. 

Normandy,  234. 

Northamptonshire,  54  n.  2. 

North  Briton,  The,  226. 

North  Carolina,  division  from 
South  Carolina,  24;  State  con- 
stitution, 37,  78,  187;  bill  of 
rights,  209,  218. 

North,  Lord,  143,  144,  156  n.  i, 
170,  172. 

Northumbria,  86. 

Orange,  William  of.    See  William 

HI. 
Ordinan,'     Council.       See     Privy 

Council. 
Osborne,  Thomas,  Earl  of  Danby, 

99- 
0.vford,  54  n.  2,  71,  219  n.  3. 

Palgrave,  Sir  Francis,  cited,  235. 
Pardoning   powers    of   governors, 
152;  of  President,  100,  152  n.  i, 
166,  ib.  n.  I ;  of  King,  165. 
Parliament,  colonial  relations  of,  27, 
ib.   n.  2,  28,  32,  33,  35  n.   I ;    a 
model   for  colonial    legislatures, 
52,   82,  84  n.   i;   origin,  60,  69; 
representation  in,  66  n.  i,  68,  69, 
70  n.  I,  71 ;  membership,  68-74; 
two  houses,  9,  II,  72-74,  83,  90; 
three  houses,  73,  83 ;  compared 
with   Congress,  80,   173 ;  presid- 
ing  officers,  80;    powers,   90-92, 
98,  no  n.  2,  114,  115;   privileges, 
92,  99-101, 103, 104, 106,  107,  180 ; 
I      relation  to  taxation,  112-115  ;  re- 
'      lation  to  the  sovereign,  129,  131, 


274 


INDEX. 


135-142.  144.  146,  156,  159;  re- 
lation to  the  cabinet,  138-141. 

Penn,  William,  22,  23  n.  i,  78  n.  i, 
218. 

Pennsylvania,  settled  by  Dutch  and 
Swedes,  22 ;  granted  to  Penn,  22 ; 
relation  to  Delaware,  22  ;  patent, 
22,  ib.  n.  I ;  government,  23 ; 
Dutch  influence,  23  n.  i ;  State 
constitution,  37,  77,  78  n.  i,  80, 
97,  152  n.  I,  221  n.  2,  232  n.  2; 
governor,  150  n.  i ;  bill  of  rights, 
209. 

Petition  of  Rights,  114,  207,  223, 
225,  ib.  n.  3. 

Petition,  right  of,  221,  222. 

Philadelphia,  41-43,  49  n.  i,  50,  53, 
77-79,  84,  lb.  n.  I,  loi  n.  I,  144, 
147,  154,  166,  186,  187,  ib.  n.  I, 
190,  193,  19s,  211,  214  n.  I,  217 
n.  2. 

Pinckney,  Charles  Cotesworth,  46 
n.,  54  n.  2,  167  n.  2,  217  n.  2. 

Pitt,  William,  144,  147  n.  1. 

Place  Bill,  137  n.  i. 

Plantagenets,  the,  70,  89,  92,  93, 
122  n.  2,  130,  132,  133. 

Plymouth,  colony  of,  14  n.  i ;  bill 
of  rights,  115  n.  i,  208,  ib.  n.  2, 
209. 

Pratt,  Lord  Chief  Justice,  228  n.  i, 

Presbyterians,  216,  ib.  n.  2. 

President,  colonial,  15,  154  n.  i. 

President  of  the  United  States,  his 
office  derived  from  the  governor- 
ship, 149,  ib.  n.  I,  150,  ib.  n.  i, 
152,  ib.  n.  I ;  from  the  kingship, 
42,  117.  148-151,  153,  155,  158- 
161,  164-166,  172-177;  his  title, 
150  n.  i;  impeachment,  98,  100; 
election,  152  n.  i,  174  n.  i ; 
powers,  150,  151,  155,  157-167, 
174,  175 ;  pardoning  power,  100, 
152,  166,  ib.  n.  I ;  his  veto,  156, 
158,  174;  message,  158;  relation 


to  Congress,  156-159 ;  relation  to 
foreign  affairs,  16,  ib.  n.  i,  170; 
is  commander-in-chief  of  the 
army  and  navy,  161,  164  n.  i, 
174;  his  war  powers,  161  n.  i, 
163  ;  power  of  appointment,  160, 
ib.  n.  3,  165,  172,  174,  193 ;  proc- 
lamations, 164  n.  I ;  execution  of 
the  laws,  165,  ib.  n.  i,  174,  175 ; 
his  relation  to  the  cabinet,  158, 
166,  167  n.  2,  168,  170-172,  176. 

President,  Vice,  81. 

Press,  freedom  of,  219-221. 

Proctor,  Richard  A.,  cited,  6  n. 

Proctors,  73. 

Protestants,  215,  216,  ib.  n.  2,  223. 

Puffendorf,  i. 

Puget  Sound,  8  n. 

Puritanism,  135. 

Puritans,  216. 

Quakers,  216. 

Quartering  of  troops,  224,  225,  ib. 
n.  3. 

Race  influence,  3 ;  Dutch  race  in 
America,  4  n.  i ;  English  race  in 
America,  4  n.  i,  5  n.  1 ;  Teutonic 
race,  4,  ib.  n.  i. 

Randolph,  Edmund,  46  n. 

Reformation,  the,  73,  135,  219. 

Religious  liberty,  211,  214-219. 

Representation  in  legislation,  9;  in 
Virginia,  13,  33;  Teutonic,  66  n. 
I ;  in  the  Norman  Great  Coun- 
cil, 68;  origin  of  in  Parliament, 
69-72,  113  n.  I,  115. 

Representatives,  House  of,  42,43; 
origin  of,  80 ;  presiding  officer, 
81,  z'^.  n.  i;  privileges,  96;  rela- 
tion to  money  bills,  46  n.,  loi,  ib. 
n.  I,  io2,?'3.  n.  i;  contrasted  with 
the  House  of  Commons,  201 ,  n.  i. 

Revolution,  American,  12,  24,  29, 
31  n.  4,  32,  35-37,  43  n.  I,  53,  IIS, 


INDEX. 


275 


143,  ib.  n.  2,  158,  172,  191  n.  i, 
200,  207  n.  I,  222,  226;  English, 
of  1688,  29,  50,  92,  99,  136-138, 
207,  232:  French,  41,  84  n.  i. 

Rhode  Island,  early  government, 
17;  charter,  17;  State  constitu- 
tion, 17,  38,  152  n.  I,  191,  205  n. 
I ;  bill  of  rights,  208  n.  i,  209. 

Richard  I.,  89,  135. 

Richard  II.,  91,  no  n.  2,  114  n.  i, 
127  n.  I,  131,  134. 

Rights,  Bill  of,  in  Virginia,  13 ;  Mas- 
sachusetts, 15;  Connecticut,  17; 
Maryland,  18 ;  New  York,  20  n. 
2 ;  Pennsylvania,  22  n.  2 ;  of  the 
United  States,  42,  211,  213,  224 
n.  I ;  England,  104, 114,  137,  207, 
222,  225,  232,  233. 

Right  of  petition,  221,  222. 

Right,  Petition  of,  14,  207,  223,  225, 
ib.  n.  3. 

Right  to  bear  arms,  223,  ib.  n.  i,  ib. 
n.  4,  224,  ib.  n.  I. 

Rochefoucauld,  Due  de  la,  174  n.  i. 

Rockingham,  Lord,  144. 

Roman,  60  n.  2,  124,  231,  233  n.  2, 
234,  ib.  n.  I. 

Roman  Catholics,  215,  216,  ib.  n. 
2,  218. 

Rome,  238. 

Roses,  Wars  of  the,  131. 

Rousseau,  Jean  Jacques,  i,  ib.  n.  i. 

Rufus,  William.     See  William  II. 

Rutledge,  J.,  10  n.  i,  54  n.  2. 

St.  Albans,  70,  71. 

St.  Andrews,  54  n.  2. 

St.  Edmund,  Abbot  of,  171  n.  i. 

Scroggs,  Chief  Justice,  220  n.  3. 

Scotland,  54  n.  2. 

Secrecy  of  debates,  107,  108. 

Secession,  War  of,  161  n.  i. 

Secretary,  of  the  Navy,  170  n.  2 ;  of 
State,  170,  ib.  n.  2 ;  of  the  Treas- 
ury, 167  n.  2 ;  of  War,  172  n.  2. 


Senate,  the,  origin,  77-79 ;  of  States, 
78,  ib.  n.  I ;  membership,  78  n.  I, 
79  n.  I ;  its  function  as  executive 
council,  79;  as  Privy  Council, 
160,  ib.  n.  2,  ib.  n.  3, 162, 166, 167  ; 
contrasted  \rith  the  House  of 
Lords,  206;  presiding  officer,  81 ; 
privileges,  96, 97 ;  judicial  powers, 
96,  97 ;  relation  to  money  bills, 
loi,  102,  ib.  n.  I ;  powers,  no  n. 
2,  156. 

Settlement,  Act  of,  99,  109,  127  n.  i. 

194.  196. 

Seward,  Secretan.',  161  n.  i. 

Shaftesbury,  Lord,  23  n.  2. 

Shelbume,  Lord,  144,  ib.  n.  3. 

Sheldon,  Archbishop,  71,  73. 

Shire,  Knights  of  the.    See  Knights. 

Shiremoot,  the,  origin,  60-63  '<  ^'^'^- 
tinuation  of,  65,  181  n.  i ;  mem- 
bership, 70. 

Shrewsbury,  97. 

Social  contract  theory,  i,  2  ru  i. 

Social  growth  theory,  i,  2  n.  i. 

Sophia  of  Hanover,  127  n.  i. 

Spain,  44  n.,  60  n.  2,  82,  134  n.  i. 

Sparta,  238. 

Speech,  freedom  of,  103,  104. 

Spinoza,  i. 

Stafford,  Thomas  Wentworth,  Earl 
of,  97  n.  I. 

State,  the,  colonial  source  of  gov- 
ernment, 13 ;  constitutions,  13, 
17,  25,  49,  no  n.  2 ;  origin  of 
the  legislature,  60;  executive 
cotmcil,  77;  executive,  150  n.  i, 
152  n.  I ;  controversies  bet\veen 
States,  197,  200,  ib.  n.  i ;  State 
system,  204. 

States  in  the  Confederation,  39,  40. 

States  General  of  France,  82. 

States  General  of  the  Netherlands, 
41. 

Statholder,  A.,  194  n.  i. 

Stephen,  King,  122  n.  2. 


276 


INDEX. 


Story,  Mr.  Justice,  cited,  lo,  ii, 
152,  199. 

Stuart,  House  of,  132,  139. 

Stubbs,  Bishop,  cited,  134. 

Suffolk,  179  n.  I. 

Sunderland,  Robert,  Earl  of,  138, 
ib.  n.  I. 

Supreme  Court,  the,  attitude  on 
war  powers  of  the  President,  161 
n.  I ;  its  justices  appointed  by 
the  President,  165;  decisions, 
43  n.  I,  170  n.  3,  211  n.  2; 
powers,  185,  189,  ib.  n.  2,  192  n. 

1,  192  n.  2,  196  n.,  197,  200,  206; 
guardian  of  the  constitution,  190- 
192;  procedure,  190-192,  197, 
198,  ib.  n.  I.    . 

South  Africa,  204. 
Sussex,  63  n.  i. 
Sweden,  82,  83. 
Switzerland,  43,  ib.  n.  2. 

Tacitus,  cited,  59. 

Taney,  Chief  Justice,  161  n.  i. 

Taxation,  9,  13,  32-34,  71,  73,  ib.  n. 

2,  88,  90,  loi,  102,  ib.  n.  i,  104  n. 
I,  105,  no  n.  2,  112-114, 129,  137. 

Taylor,  Hannis,  cited,  67,  190,  and 

nn. 
Tenants  in  chief,  68,  130  n.  i. 
Test  Act,  215  n.  4,  219,  ib.  n.  2. 
Teutonic,  institutions,  60,  ib.  n.  2, 

62,  69,  70  n.  1,72,  86,  96, 117-119, 

121 ;    race,  44,   61  n.,   130,  238 ; 

freedom,  61 ;  legislation,  66  n.  i, 

67,  87,  89  n.  2. 
Thegns,  67,  126  n. 
Third  Estate,  72,  73  n.,  82. 
Toleration,  Act  of,  214. 
Tories,  31  n.  4,  147  n.  i. 
Township  system,  4  n.  i,  25  n.  i. 
Treason,  law  of,  202,  203,  ib.  n.  i. 
Tudor,  House   of,   132,    134   n.  i, 

135- 
Turgot,  30  n.  i. 


Two  Houses,  9,  12,  14,  17,  18,  ib. 
n.  2,  42,  72-74,  77,  83,  84,  ib.  n.  i, 
90. 

Union  of  Utrecht,  16  n.  2,  205  n.  i. 

United  States,  the,  10,  27,  57,  84, 
85,  109,  no,  117,  143,  144,  152, 
156,  159,  161,  lb.  n.  I,  165,  tb.  n. 

1,  170-173,  175,  185,  188,  192,  ib. 
n.  2,  193,  196-203,  214,  218,  219, 
229,  239. 

Venice,  43  n.  i. 

Vermont,  State  constitution,  77,  80, 
97,  232  n.  2. 

Versailles,  Peace  of,  144. 

Veto  power,  12,  22,  27,  93  n.  i,  95, 
156-158,  174,  175. 

Vice-President,  81. 

Victoria,  Queen,  140  n.  i,  175. 

Villars,  George,  Duke  of  Bucking- 
ham, 97  n.  I. 

Virginia,  settlement,  10;  charters, 
10;  first  legislature,  10,  11,  ib.  n. 

2,  ib.  n.  4;  Governor  Yeardley, 
11;  early  government,  11;  com- 
pared with  Massachusetts,  15 ; 
State  constitution,  13,37,  78  n.  i, 
97,  187;  bill  of  rights,  115  n.  i, 
208  n.  I,  209,  217  n.  2. 

Warrants,  226-228. 

Washington,  city  of,  27,  192  n.  2, 
204. 

Washington,  George,  President, 
8  n.,  36  n.,  147  n.  i,  158,  170,  174 
n.  I. 

Webster,  Daniel,  cited,  37. 

Wentworth,  Thomas,  Earl  of  Straf- 
ford, 97  n.  I. 

Wessex,  63  n.  i. 

West  Indies,  143  n.  2. 

Westminster,  71. 

West  Saxons,  86. 

Wethersfield,  16. 


INDEX. 


277 


Whigs,    31    n.   4,    138    n.    i,    147 

n.  I. 
Whitehall,  136. 
Whitraed,  86. 

Wilkes,  John,  226,  227  n.  i. 
Wilfred,  87. 
William  I.,  the  Conqueror,  8g,  ib. 

n.  I,  122  n.  2,  127  n.  i,  129,  133, 

178. 
William  II.,  Rufus,  129,  178. 
William  III.,  of  Orange,  20,  92,  97, 

99,   III,   114,   136-138,  145,   146, 

151,  194,  ib.  n.  I,  214,  221. 
Williams,  Roger,  216  n.  2. 
Wilson,  James,  45   n.  2,  54  n.  2, 

149  n.  I,  157  n.  I,  187  n.  2. 
Windsor,  Conn.,  16;  England,  17. 


Witenagemot,  origin,  60,  62,  64 ; 
membership,  64-67,  86,  87 ;  pro- 
cedure, 66  n.  I,  87,  88  n.  i ;  title, 
67 ;  merged  in  the  Great  Coun- 
cil, 67,  180;  in  the  House  of 
Lords,  68 ;  origin  of  the  Privy 
Council,  76 ;  of  the  Senate,  77, 
79 ;  powers,  88,  89,  ib.  n.  i,  96, 
98,  112,  126,  127,  180,  ib.  n.  I. 

Woden,  124. 

Yeardley,  Governor,  11. 
York,  73,  91,  127  n.  i,  132,  134, 135. 
York,  Duke  of,  19-22,  217,  ib.  n.  2. 
York,  House  of,  129  n.  i,  132,  134, 

I3S- 
Yorkshire,  8  n. 


The  American  Commonwealth. 

By  the  Right  Hon.  JAMES  BRYCE,  D.C.L., 

Author  of  "  The  Holy  Roman  Empire  "/  M.P.  for  Aberdeen. 

In  Two  Volumes,  Large  i2mo.      Third  Edition,  Revised  Throughout. 

Vol.   I.   $1.75.     Now  Ready.  Vol.  II.     In  the  Press. 

"  Written  with  full  knowledge  by  a  distinguished  Englishman  to  dispel  vulgar  prejudices 
and  to  help  kindred  people  to  understand  each  other  better,  Professor  Brjce's  work  is  in  a 
sense  an  embassy  of  peace,  a  message  of  good-will  from  one  nation  to  another."  — The  Times, 
London. 

"  This  work  will  be  invaluable  ...  to  the  .American  citizen  who  wishes  something  more 
than  a  superficial  knowledge  of  the  political  system  under  which  he  lives  and  of  the  differences 
between  it  and  those  of  other  countries.  .  .  .  The  fact  is  that  no  writer  has  ever  attempted 
to  present  so  comprehensive  an  account  of  our  political  system,  founded  upon  such  length  of 
observation,  enriched  with  so  great  a  mass  of  detail,  and  so  thoroughly  practical  in  its  charac- 
ter. .  .  .  We  have  here  a  storehouse  of  political  information  regarding  America  such  as  no 
other  writer,  American  or  other,  has  ever  provided  in  one  work.  .  .  .  It  will  remain  a  stan- 
dard even  for  the  American  reader."  —  New  York  Tribune. 

"  The  book  should  be  known  by  every  American  who  wishes  to  understand  his  own  coun- 
try. ...  It  is  by  far  the  most  able,  sincere,  candid,  and  impartial  study  of  the  condition  of 
the  United  States  that  has  ever  appeared  since  De  Tocqueville's  memorable  work."  —  Boston 
Beacon. 

"  This  general  outline  of  Mr.  Bryce's  most  important  book  is  given  in  the  hope  that  it  may 
help  create  the  conviction  that  no  earnest  and  intelligent  American  can  afford  to  remain 
ignorant  of  it.  His  education  will  be  incomplete,  as  a  preparation  for  his  duties  as  a  citizen, 
if  he  does  not  take  advantage  of  the  helps  to  a  sound  judgment  and  a  noble  purpose  which 
are  here  given."  —  N.  V.  Evening  Post. 


WORKS  BY  THE  SAME  AUTHOR. 

THE   HOLY  ROMAN  EMPIRE,       Eighth   Edition,   revised  and 

enlarged.     Crown  Svo.     $1.00.     Library  Edition.      Svo.     S3. 50. 

The  Saturday  Review  says:  "  It  exactly  supplies  a  want.  .  .  .  We  know  of  no  writer 
who  has  so  thoroughly  grasped  the  real  nature  of  the  mediaeval  empire,  and  its  relations  alike 
to  earlier  and  later  times." 

TRANSCAUCASIA  AND  ARARAT.  Being  Notes  of  a  Vaca- 
tion Tour  in  the  Autumn  of  1876.  With  Map  and  View  of  Mount  Ararat. 
Third  Edition.     Crown  Svo.     $2.50. 

The  Times  says:  "  He  has  produced  a  ver>'  interesting  volume,  full  of  information.  .  .  . 
In  Professor  Bryce's  bold  ascent  of  Ararat  alone,  when  Kurds  and  Cossacks  alike  deserted 
him,  we  have  a  feat  of  mountain  climbing  which  in  itself  proves  him  to  be  no  unworthy 
member  of  the  Alpine  Club.  This  alone  would  render  the  book  well  worth  reading,  quite 
apart  from  the  store  of  information  contained  in  it." 

SOCIAL  INSTITUTIONS  OF  THE  UNITED  STATES.  Re- 
printed from  "  The  American  Commonwealth."      i2mo.     Cloth.     $1.00. 


MACMILLAN  &  CO., 

66    FIFTH   AVENUE,    NEW  YORK. 


THE  UNITED  STATES. 

An   Outline  of   Political    History,  1492-1871. 

By    GOLDWIN    SMITH,    D.C.L. 
12mo,  cloth,  price  »2.00. 

"  Considered  as  a  literary  composition,  the  work  can  scarcely  be  too  highly 
praised.  It  is  a  marvel  of  condensation  and  lucidity.  In  no  other  book  is  the 
same  field  covered  so  succinctly  and  so  well.  .  .  .  Almost  every  page  is  enriched 
with  striking  comments  that  cause  the  reader  to  carefully  reconsider,  if  not  to 
change,  his  views  of  many  historical  persons  and  events."  —  The  New  York  Sun. 

"  The  opinions  advanced  by  Professor  Smith  are  ...  in  the  main  in  harmony 
with  those  of  our  best  authorities,  and  the  treatise  as  a  whole  has  a  comprehen- 
siveness of  view  and  a  ready  grasp  of  leading  tendencies  that  should  make  it  par- 
ticularly useful  to  the  busy  man  who  desires  a  rapid  survey  of  American  political 
history.  By  deliberately  neglecting  details  Professor  Smith  has  been  able  to  fasten 
attention  upon  salient  points  and  to  concentrate  interest  around  the  careers  of  the 
great  leaders  in  our  political  development.  ...  It  is  safe  to  assert  that  Americans 
as  well  as  Englishmen  will  welcome  Professor  Smith's  book  and  rejoice  in  its  note- 
worthy fairness  and  lucidity."  —  TAe  Beacon. 

"  The  history  of  the  United  States  is  now  told  for  us  in  the  more  attractive  form 
and  with  all  the  advantages  of  the  marvellous  power  of  condensation  and  the  brill- 
iance and  picturesqueness  of  style  which  characterize  Mr.  Goldwin  Smith's  writ- 
ing. The  pages  are  filled  with  sentences  which  stimulate  thought,  with  happy 
phrases,  with  vivid  pictures  of  men  and  of  situations  drawn  with  a  few  bold 
strokes.  ...  A  volume  of  absorbing  interest,  worthy  to  be  ranked  with  the  best 
work  of  a  great  master  of  the  English  language."  —  The  Toronto  Globe. 

"  The  work  is  written  in  an  exceedingly  pleasant  style ;  simple,  unaffected,  and 
always  lucid.  One  who  begins  to  read  is  certain  to  continue,  for  very  pleasure  at 
the  ease  of  the  narrative,  and  its  condensed  comprehension." 

"The  author  has,  as  those  who  know  him  do  not  need  to  be  told,  a  style  which 
is  nothing  less  than  fascinating,  and  a  delightful  literary  flavor  pervades  all  his 
work.  The  book  is,  of  course,  a  marvel  of  condensation.  Considered  merely  as  a 
literary  composition  it  would  command  high  praise.  Its  lucidity,  its  graphic  narra- 
tion, and  its  constant  avoidance  of  even  an  approach  to  dullness  are  quite  as 
remarkable  as  its  incisiveness  of  judgment  and  originality  of  view.  ...  As  a 
whole  the  book  is  remarkably  free  from  errors."  —  The  Providence  Sunday  yotirnal. 

"  The  book  is  a  solid  addition  to  the  literature  of  American  history,  and  espe- 
cially gives  a  presentation  of  the  '  revolutionary  and  reconstruction  '  periods  of  our 
national  life,  that  will  be  perused  with  deep  interest.  It  is  finely  adapted,  by  its 
method  of  treatment  and  the  literary  finish  of  the  writing,  to  excite  the  attention 
of  English  readers  and  to  furnish  them  with  sound  views  of  American  history." 
— ■  JVew  York  Observer. 

"  Professor  Smith  has  tried  to  be  fair  in  his  dealings  with  people  and  events,  and 
he  has  presented  in  the  main  a  very  clear  picture  of  the  influences  that  have 
brought  the  political  life  of  the  nation  to  its  present  status.  The  style  is  lucid  and 
pleasant."  —  The  Toledo  Blade. 


MACMILLAN   &   CO., 

66    FIFTH   AVENUE,    NEVv^   YORK. 


Macmillan  &  CO.'S 

LIST    OF    BOOKS 

ON 

HISTORY  p.^^  POLITICAL  ECONOMY, 


ABDY  (Judge).  —  Feudalism  :  a  Series  of  Lectures  delivered  at  Gresham  College. 
By  J.  T.  ABDV,  LL.D.     i2mo.     S2.00. 

ADAMS  and  CUNNINGHAM.— The  Swiss  Confederation.  With  Map.  8vo.  §4.00. 

ANSON.  — Works  by  Sir  William  R.  Anson,  D.C.L. 
The  Law  and  Custom  of  the  Constitution.     Clarendon  Press  Series. 
Part  I.     Parliament.     8vo.    $2.75. 
Part  II.     The  Crow-n.     8vo.     S3.50. 
Principles  of  English  Law  of  Contract,  and  of  Agency  in  its  Relation  to 
Contract.     Fifth  Edition,  revised.     Clarendon  Press  Series.     8vo.     32.60. 

ARISTOTLE.      On  the  Athenian  Constitution.      Translated,  with  Introduction 
and  Notes,  by  F.  G.  Kexyox,  M.A.,  Fellow  of  Magdalen  College,  Oxford. 
On  handmade  paper,  bound  in  buckram.    Post  Bvo.     $1.10. 
Large-paper  Edition.     Large  i2mo.    $3.25. 

BASTABLE.  —  Public  Finance.  By  C.  F.  Bastable,  Professor  of  Political  Econ- 
omy at  Trinity  College,  Dublin.    8vo.    $4.00. 

"  His  treatise  on  Finance  is  exhaustive  and  far-reaching.  .  .  .  As  a  thorough  statement 
of  the  theories  of  the  English  school  of  finance,  there  has  been  no  manual  recently  published 
that  approaches  Dr.  Bastable's  in  precision  of  definition  or  order  of  arrangement." — Com- 
mercial Bulletin. 

BEDE'S  (Venerable)  Ecclesiastical  History  of  England.  Together  with  the 
Anglo-Saxon  Chronicle.  With  Illustrative  Notes,  a  Short  Life  of  Bede, 
Analysis  of  the  History,  and  an  Index  and  a  Map  of  Anglo-Saxon  England. 
Edited  by  J.  A.  Giles,  D.C.L.    S1.50. 

BENTHAM.  —  An  Introduction  to  the  Principles  of  Morals  and  Legislation. 

CLirendon  Press  Series.     S1.75. 
A  Fragment  on  Government.     By  Jeremy  Benth.am.    Edited,  with  an  Intro- 
duction, by  F.  C.  Mont agce,  M.A.,  Late  Fellow  of  Oriel  College.   Bvo.   S2.00. 

BERNARD  (M.).  —  Four  Lectures  on  Subjects  Connected  with  Diplomacy. 
8vo.     32.50. 

BIRKBECK  (W.  L.).  — Historical  Sketch  of  the  Distribution  of  Land  in  Eng- 
land.   $1.50. 

3 


riE 


BLAIR'S  Chronological  Tables,  Revised  and  Enlarged.  Comprehending  the 
Chronology  and  History  of  the  World,  from  the  Earliest  Times  to  the  Russian 
Treaty  of  Peace,  April,  1856.  By  J.  WiLLOUGHBY  Ross.  ^3.50. 
Index  of  Dates.  Comprehending  the  Principal  Facts  in  the  Chronology  and 
History  of  the  World,  from  the  Earliest  to  the  Present  Time,  alphabetically 
arranged  ;  being  a  complete  Index  to  Bohn's  enlarged  Edition  of  Blair's 
Chronological  Tables.    By  J.  W.  ROSSE.     2  vols.    Each  $1.50. 

BLUNTSCHLI  (B.  H.).— The  Theory  of  the  State.  English  Translation  by 
R.  Lodge,  M.A.     New  Edition.    ^3.00. 

BOHM-BAWERK.  —  Capital  and  Interest.      A  Critical  History  of  Economical 

Theory.     By  EUGEN  V.  Bohm-Bawerk,  Professor  of  Political  Economy  in 

the  University  of  Innsbruck.      Translated,  with  a  Preface  and  Analysis,  by 

William  Smart,  Lecturer  on  Political  Economy  in  Queen  Margaret  College, 

Glasgow.    8vo.    ^4.00. 

"  We  have  read  the  volume  with  increasing  interest  from  the  first  page  to  the  last.  Although 
it  consists  almost  wholly  of  destructive  criticism,  it  is  very  necessary  work.  We  recall 
nothing  of  the  kind  equal  to  it.  Even  though  he  may  not  have  said  the  last  word  on  the  par- 
ticular subject  of  his  inquiry,  he  has  said  enough  to  fix  his  place  in  the  front  rank  of  the  world's 
economists."  —  Evening  Post. 

The  Positive  Theory  of  Capital.  By  Eugen  V.  Bohm-Bawerk,  author  of 
"Capital  and  Interest,"  etc.  Translated  by  William  Smart,  Lecturer  on 
Political  Economy  in  Queen  Margaret  College,  Glasgow.     8vo.    ^4.00. 

BONAR  (J.).  — Malthus  and  his  Work.    8vo.    ^4.00. 

BOND  (J.  J.).  — A  Handy  Book  of  Rules  and  Tables  for  verifying  Dates  with 
the  Christian  Era,  etc.  Giving  an  account  of  the  Chief  Eras  and  Systems  used 
by  various  Nations;  with  easy  Methods  for  determining  the  Corresponding 
Dates.    ^1.50. 

BOOTH.  — Life  and  Labour  of  the  People  in  London.      Edited  by  Charles 

Booth.    i2mo.    4  vols.    Each  ^1.50. 

Vol.  I.     East  Central  and  South  London. 

Vol.  II.     Streets  and  Population  classified. 

Vol.  III.     Blocks  of  Buildings,  Schools,  and  Immigration. 

Vol.  IV.     East  London  Industries. 

"  A  really  interesting  as  well  as  a  very  valuable  work,  and  it  is  issued  at  a  wonderfully 
low  price."  —  Athencetijn. 

A  Picture  of  Pauperism,  A  Picture;   and  The  Endowment  of  Old  Age,  An 

Argument.    By  Charles  Booth.    i2mo.    $1.25. 

BOUTMY.  — The  English  Constitution.     By  E.  Boutmy,  author  of  "Studies  in 

Constitutional  Law."     Translated   from  the  French  by  Mrs.  Eaden.    With 

Preface  by  Sir  Frederick  Pollock,  Bart.    i2mo.    ^1.75. 

Studies  in  Constitutional  Law.     France,  England,  United  States.     By  Emile 

Boutmy.    Translated  from  the  second  French  Edition  by  E.  M.  DiCEY,  with 

an  Introduction  by  A.  V.  DiCEY.     i2mo.    ^1.75. 

"  A  volume  which,  though  scarcely  more  than  a  sketch,  shows  a  singular  insight  in  avoid- 
ing the  errors  usually  made  by  French  writers  in  discussing  the  political  order  in  England 
and  the  United  States.  M.  Boutmy,  indeed,  deserves  to  be  named  with  honour  as,  after 
Mr.  Bryce,  one  of  the  most  sagacious  students  of  American  institutions  now  living."  — 
Literary  World. 

4 


BOWES  (A.).  —  A  Practical  Synopsis  of  English  History  ;  or,  A  General  Sum- 
mary of  Dates  and  Events.  For  the  use  of  Schools.  By  ARTHUR  BowES. 
New  Edition  (the  9th),  revised.     8vo.    30  cents. 

BRACTON'S  NOTE  BOOK.  A  Collection  of  Cases  decided  in  the  Kings  Court 
during  the  Reign  of  Henry  the  Third.  Edited  by  F.  W.  M.vitland.  3  vols. 
8vo.    324.00. 

BRIGHT. —  Works  by  the  Right  Hon.  John  Bright,  M.P. 

Speeches  on  Questions  of  Public  Policy.    Edited  by  Prof.  Thorold  Rogers. 

Second  Edition.    2  vols.     8vo.     36.00. 

Author's  Popular  Edition.     Globe  8vo.    Si. 25. 
Public  Addresses.    8vo.    32.50. 

BRIGHT  (\V.  Bright,  D.D.).  — Chapters  of  Early  English  Church  History. 

Second  Edition.    8vo.    33-oo- 
BRYCE.  — Works  by  James  Bryce,  M.P.,  D.C.L. 

The  Holy  Roman  Empire.     Eighth  Edition,  revised  and  enlarged.    i2mo.   3i-oo- 

Library  Edition.     Svo.     S3. 50. 
The  American  Commonwealth.    2  vols.     Large  i2mo.    Third  Edition.     Re- 
vised throughout.     Price  S3-50,  net. 

"  His  work  rises  at  once  to  an  eminent  place  among  studies  of  great  nations  and  their  insti- 
tutions. It  is,  so  far  as  America  goes,  a  work  unique  in  scope,  spirit,  and  knowledge.  There 
is  nothing  like  it  anywhere  extant,  —  nothing  that  approaches  it.  .  .  .  Without  exaggera- 
tion it  may  be  called  the  most  considerable  and  gratifying  tribute  that  has  yet  been  bestowed 
upon  us  by  an  Englishman,  and  perhaps  by  even  England  herself.  .  .  .  One  despairs  in  an 
attempt  to  give  in  a  single  newspaper  article  an  adequate  account  of  a  work  so  infused  with 
knowledge  and  sparkling  with  suggestion.  .  .  .  Every  thoughtful  American  will  read  it, 
and  will  long  hold  in  grateful  remembrance  its  author's  name."  —  N'eiv  York  Times. 

Social  Institutions  of  the  United  States.      Reprinted  firom  "  The  American 

Commonwealth."     i2mo.     Clotli,  Si.oo. 

BUCKLAND  (A.).  —  Our  National  Institutions.  A  Short  Sketch.  i8mo.  30 cents. 

BUCKLEY  (A.  B.).  — History  of  England  for  Beginners.    With  additions  by 
Dr.  R.  H.  Labberton.     With  maps.     Globe  Svo.    $1.00. 
A  Primer  of  English  History.    By  Arabella  Buckley,  author  of  "  History 
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BURKE.  —  Letters,  Tracts,  and  Speeches  on  Irish  Affairs.   Edited  by  Matthew- 
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Bristol  Election;  Speech  on  Fox's  East  India  Bill,  etc. 
5 


BURKE'S  Works.  —  Continued. 

Vol.  1 1 1.     Appeal  from  the  New  to  the  Old  Whigs ,   on  the  Nabob  of 

Arcot's  Debts ;  the  Catholic  Claims,  etc. 
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2  vols,  (forming  vols.  7  and  8  of  the  complete  works).     Each  ^i.oo. 
Life.     By  Sir  J.  Prior.     With  a  Portrait  after  Reynolds,    ^i.oo. 

BURNET.  —  History  of  the  Reformation  of  the  Church  of  England.    A  New 

Edition.     Carefully  Revised  by  N.  POCOCK,  M.A.    7  vols.     8vo.     $7.50. 
History  of  James  the  II.,  with  additional  Notes.     8vo.     ^2.50. 

BURY  (J.  B.).  —  A  History  of  the  Later  Roman  Empire  from  Arcadius  to 
Irene,  A.D.  395-800.     2  vols.     Bvo.    ^6.00. 

CAIRNES  (J.  E.).  — Political  Essays.     8vo.     ^2.50. 

CANNAN  (E.).  —  Elementary  Political  Economy.  i6mo.  Stiff  cover.  25 
cents. 

CHRONICLES  OF  THE  CRUSADES.  — Contemporary  Narratives  of  the  Crusade 
of  Richard  Coeur  de  Lion,  by  Richard  OF  DEVIZES  and  Geoffry  DE  Vin- 
SAUF;  and  of  the  Crusade  of  Saint  Louis,  by  Lord  JOHN  DE  JOINVILLE. 
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old  MS.    ^1.50. 

CHRONICON.  Galfridi  le  Baker  de  Swynebroke.  Edited  with  Notes  by  E.  M. 
Thompson,  LL.D.    410.    ^5.25. 

CLARENDON.  — History  of  the  Rebellion  and  Civil  Wars  in  England.     By 

Edward,  Earl  of  Clarendon.    Also  his  Life.     Royal  Bvo.    ^5.50. 

History  of  the  Rebellion  and  Civil  Wars  in  England.  To  which  are  sub- 
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History  of  the  Rebellion,  Book  VI.  Edited  by  Thomas  Arnold.  Clarendon 
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Life,  including  a  continuation  of  his  History.     2  vols.     Medium  8vo.    ^5.50. 

The  History  of  the  Rebellion  and  Civil  Wars  in  England,  begun  in  the  year 
1641  by  Edward,  Earl  of  Clarendon.  Re-edited  from  a  fresh  collection 
of  the  original  MS.  in  the  Bodleian  Library,  with  Marginal  Dates  and 
Occasional  Notes,  by  W.  Dunn  Macray,  M.A.    6  vols,    ^ir.oo. 

Characters  and  Episodes  of  the  Great  Rebellion.  Edited  with  Notes  by 
G.  D.  Boyle.    ^2.00. 

CLARKE  (C.  B.).  — Speculations  from  Political  Economy.     ;gi.oo, 

6 


CLINTON.  —  Fasti  Hellenici.     The  Civil  and  Literary  Chronology  of  Greece. 

Vol.  I.     From  the  LVIth  to  the  CXXIIId  Olympiad.     Third  Edition.     4to. 

Vol.  II.    From  the  CXXIVth  Olympiad  to  the  Death  of  Augustus.     Second 
Edition.    4to.    §8.00. 
Epitome  of  the  Hellenici.     8vo.    $1.75. 
Fasti  Romani.    The  Ci%il  and  Literary  Chronology  of  Rome  and  Constantinople. 

2  vols.    410.     S  10.50. 
Epitome  of  the  Fasti  Romani.    8vo.    S1.75. 

COBDEN  (R.j.  — Speeches  on  Questions  of  Public  Policy.  Edited  by  John 
Bright,  M.P.,  and  J.  E.  Thorold  Rogers.    Globe  8vo.    S1.25. 

CONDE'S  History  of  the  Dominion  of  the  Arabs  in  Spain.  Translated  from 
the  Spanish  by  Mrs.  FOSTER.  With  Engra\"ing  of  Abderahmen  Ben  Moavia, 
and  Index.    3  vols.     Each  Si.oo. 

COSSA  (D.  L.).  — Guide  to  the  Study  of  Political  Economy.     With  Preface 

by  W.  St.\NLEY  Jevons,  F.R.S.  Third  Edition.    $2.60. 

COXE'S  Memoirs  of  the  Duke  of  Marlborough.  With  his  Original  Corre- 
spondence, collected  from  the  family  records  at  Blenheim.  Edited  by  W. 
COXE,  MA.,  F.R.S.  Re\ised  Edition  by  JOHN  WaDE.  With  Portraits  of 
the  Duke  and  Duchess  (after  Kneller),and  Prince  Eugene  (after  Schupper). 
With  Index.    3  vols.    Each  ^i-oo. 

An  Atlas  of  the  plans  of  Marlborough's  campaigns.    4to.    53-50. 

History  of  the  House  of  Austria.  From  the  Foundation  of  the  Monarchy  by 
Rhodolph  of  Hapsburgh  to  the  Death  of  Leopold  II.,  1218-1792.  By  Archd'n 
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